                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 14-2360


MELANIE LAWSON,

                  Plaintiff – Appellant,

           v.

UNION COUNTY CLERK OF COURT, William F. "Freddie" Gault;
WILLIAM F. GAULT, a/k/a Freddie Gault, Individually,

                  Defendants – Appellees.

-------------------------------------

BRENNAN   CENTER  FOR   JUSTICE  AT   NYU  SCHOOL          OF   LAW;
PENNSYLVANIA CENTER FOR THE FIRST AMENDMENT,

                  Amici Supporting Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.      Timothy M. Cain, District
Judge. (7:13-cv-01050-TMC)


Argued:   September 17, 2015                    Decided:    July 7, 2016


Before DUNCAN     and   DIAZ,   Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.


Vacated and remanded by published opinion.   Judge Duncan wrote
the majority opinion, in which Judge Diaz joined. Senior Judge
Davis wrote a dissenting opinion.
ARGUED: Samantha Clark Booth, MUNGER, TOLLES & OLSON LLP, Los
Angeles,   California,  for   Appellant.     Vance   J.  Bettis,
GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for
Appellees.    Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles,
California, for Amici Curiae.    ON BRIEF: Mark Epstein, MUNGER,
TOLLES & OLSON LLP, Los Angeles, California; John G. Reckenbeil,
LAW OFFICE OF JOHN G. RECKENBEIL, LLC, Spartanburg, South
Carolina, for Appellant.     Sina Safvati, Anjelica Sarmiento,
Sabine Tsuruda, UCLA School of Law Students, SCOTT & CYAN
BANISTER FIRST AMENDMENT CLINIC, Los Angeles, California, for
Amici Curiae.




                               2
DUNCAN, Circuit Judge:

      Appellee     William        Gault       (“Gault”)      terminated         Appellant

Melanie Lawson (“Lawson”) from her position as a deputy clerk in

the Clerk of Court’s Office of Union County, South Carolina.

Lawson     filed    suit,       challenging         her   termination          on   First

Amendment grounds.            Gault moved for summary judgment, and the

district court granted the motion, holding that Lawson occupied

a   confidential    or        policymaking        position    and      was    subject   to

termination for campaigning against her boss.                       We disagree that

Gault has established as a matter of law that Lawson held a

position for which political loyalty was required, and we are

unable to affirm on any other grounds based on the record as

currently presented.           We therefore vacate the judgment below and

remand for further proceedings consistent with this opinion.

      The dissent is so hyperbolic that it seems necessary to

stress exactly what is at issue in this appeal.                              The majority

simply   reverses       the    grant     of   summary     judgment       to    Gault    and

remands.       What the dissent is so exercised about is that the

majority does not grant summary judgment to Lawson, who never

moved for summary judgment nor otherwise sought such relief.                            To

the   extent    there    is     anything      remarkable      about     this     opinion,

either   jurisprudentially          or    otherwise,         it   is    the     dissent’s

determination to overleap precedent and procedure, and preclude

the development of any record evidence, solely to grant Lawson

                                              3
relief she did not ask for and which Gault had no notice of. As

we   explain   below,      the   issue    before      this   court      on    appeal   is

narrow: whether Gault’s motion for summary judgment had merit.

We conclude that it did not, and our opinion steps beyond that

simple question only insofar as we must address the dissent’s

gratuitous overreach.



                                          I.

                                          A.

       This action arises out of Union County, South Carolina’s

2012    election     for   Clerk    of    Court.        Because      of      the   unique

statutory      characteristics       of       that     position,     we       begin    by

describing it briefly.

       The   South   Carolina      Constitution        creates    the     position     of

Clerk of Court for each county.                S.C. Const. art. V, § 24.               The

Clerk is elected to a four-year term through partisan elections,

with the Governor empowered to fill any vacancies that arise

between elections.          S.C. Code Ann. § 14-17-30.                    The General

Assembly prescribes the Clerk’s duties.                      S.C. Const. art. V,

§ 24.    The Supreme Court of South Carolina approves guidelines

for the Clerk in connection with the court’s responsibility to

make rules of court administration.                  Id. art. V, § 4; see, e.g.,

Administrative Order Adopting Clerk of Court Manual Revision,

S.C.    Sup.   Ct.   Administrative       Order       No.    2014-05-21-01,        dated

                                          4
May 21,       2014,          http://www.judicial.state.sc.us/courtOrders/

displayOrder.cfm?orderNo=2014-05-21-01.                                The        Clerk       is

essentially responsible for all the duties typically associated

with court administration.                  See S.C. Code Ann. §§ 14-17-210 to

14-17-760.

      South Carolina law authorizes the Clerk to appoint deputy

clerks to aid in executing the Clerk’s statutory duties.                                     Id.

§ 14-17-60.          Once    sworn          into        office,    a   deputy      clerk      is

authorized to carry out any of the Clerk’s statutory duties.

See id.      A deputy clerk serves at the pleasure of the Clerk.

See id.

      The   Supreme    Court          of    South       Carolina   has   issued       a   Clerk

Manual, which emphasizes the Clerk’s “public relations” role as

the sole face of the state court system for many individuals.

See   Clerk     of     Court          Manual        §     1.21     “Public        Relations,”

http://www.judicial.state.sc.us/ClerkOfCourtManual/displaychapte

r.cfm?chapter=1#1.21.                  In    the        Family     Court/Child          Support

Division,     where    Lawson         worked,       the     sensitive        nature     of   the

proceedings    gives        the   Clerk’s          public     relations       role      greater

importance.      See    id.       §    7.18,       “Confidentiality          in   the     Family

Court,”          http://www.judicial.state.sc.us/clerkOfCourtManual/

displaychapter.cfm?chapter=7#7.18.

      Because all Family Court filings are submitted through the

Clerk, the Family Court/Child Support Division of the Clerk’s

                                               5
Office routinely handles sensitive filings.                                Cases concerning

legal    infractions         by    minors,       child      neglect    and       abuse,     child

custody, divorce, adoption, termination of parental rights, and

spousal and child support all originate in Family Court.                                       S.C.

Code Ann. §§ 63-3-510, 63-3-530.                           Further, many Family Court

filings, unlike most court documents, are strictly confidential.

See,     e.g.,    id.        §    44-41-32           (unemancipated         minors        seeking

abortions without parental consent); id. § 63-19-2040 (alleged

state law violations by minors); id. § 63-9-780(B) (adoptions).

In   addition,      South         Carolina       law      protects     the       integrity      of

filings     related      to       adoptions          by    making    it     a    misdemeanor,

punishable by fine and imprisonment, to disseminate or allow the

unauthorized       dissemination            of       such    records.            Id.    § 63-9-

780(F)(2).        The    Family         Court/Child          Support       Division       of   the

Clerk’s    Office       is       also   responsible          for     managing       the    child

support    account      and       working    with         other    staff    in    the     Clerk’s

Office     to    process         the    account’s          monthly     statements.             See

J.A. 96.




                                                 6
                                      B.

     Lawson was an employee in the Union County Clerk’s Office

from 1992 until 2012, beginning as a child-support clerk under

June Miller (“Miller”), who at that time was the Clerk of Court.

Miller named Lawson the Family Court coordinator before Miller

retired from her position as Clerk in 2003.

     Lawson continued to work in the Family Court/Child Support

Division    under   Miller’s    successor,     Brad       Morris    (“Morris”).

Morris served as Clerk from 2003 until October of 2009, when he

resigned after pleading guilty to embezzling more than $200,000

in public funds from the Clerk’s Office.                  During his term in

office,    Morris   stole   cash    receivables     and    falsified       deposit

slips, beginning with funds from child support receivables and

eventually including accounts across the Clerk’s Office.                   Lawson

applied    for   appointment   to   the    vacant   position       after   Morris

resigned, but the Governor appointed William F. Gault to serve

as Clerk through the next election cycle instead.

     At the time Gault took over as Clerk, the office had ten

full-time staff members.       Gault thereafter received approval and

funding from the Judicial Council 1 to hire Miller, the former


     1 The Judicial Council is a committee of judges, executive
and legislative officials, and private individuals that make
findings and recommendations on “the administration of justice”
in South Carolina courts.      See S.C. Code Ann. §§ 14-27-10
(creation), 14-27-20 (composition), 14-27-70 (duties).


                                      7
Clerk of Court, as a part-time employee for six months.                                The

parties have stipulated that Gault hired Miller “to perform bank

reconciliations in an effort to prevent another lapse like the

one    that        had   allowed    Mr.     Morris        to   embezzle     hundreds    of

thousands of dollars from the Clerk’s Office.”                       J.A. 20.

       Gault       retained     Miller     after    the     six-month     period     ended,

paying her with funds from the child support account.                              He also

selected       Lawson      to   supervise     the        Family   Court/Child      Support

Division       of    the    Clerk’s      Office     as     his    deputy.       In   their

respective         capacities,     Lawson     and    Miller       would   interact     when

Miller had questions about the monthly child support account

statements.

                                             C.

       Gault opted to run for a full term as Clerk in the November

2012 election, entering the race as a Republican.                           On March 30,

2012, Lawson declared her candidacy for the Democratic primary, 2

with       plans    to   oppose    Gault    in     the    general    election.       After

Lawson informed Gault of her action, Gault placed her on unpaid

leave for the duration of her campaign.

       Lawson acknowledges that, as her campaign progressed, June

Miller became a campaign issue.                    According to Lawson, she “made

       2
       Because of a 2012 South Carolina Supreme Court decision
unrelated to the present case, Lawson was ineligible to run in
the Democratic primary.      She ultimately ran as a Petition
candidate in the general election.


                                             8
statements concerning June Miller’s employment with the Clerk’s

Office.”       J.A. 186.    Specifically, Lawson expressed concern over

“where the funds were coming from to pay Ms. Miller,” given that

Miller     continued      working     after       her    six-month        authorization

expired.       Id.   Lawson explained that she “had a heightened sense

of alertness, especially when it involved funds of the Clerk’s

Office” given Morris’s embezzlement scandal.                    J.A. 187.

       Shortly after his election, Gault set up a meeting with

Lawson.        At that November 14, 2012, meeting, Gault terminated

Lawson, telling her that “he had to do what was in the best

interest of the office.”             J.A. 21.           Gault would later testify

that he terminated Lawson in part for making statements during

her    campaign      regarding      Miller’s         employment      at   the     Clerk’s

Office, and in part because he was concerned that her continued

employment would undermine his authority as Clerk.

       Gault    explained    that,     on       numerous      occasions     during   the

campaign, it was brought to his attention that Lawson was making

statements       identifying     Miller         by    name.       These     statements

questioned Gault’s decision to continue to employ Miller given

that     the    “county    council    doesn’t         want    June    Miller      there.”

J.A. 88.        Moreover,    Gault     was       told    that   Lawson      was    making

statements to the effect that “June Miller should not be in the

clerk of court’s office” and “June Miller is already drawing her

social security and her retirement.”                    Id.     According to Gault,

                                            9
he “couldn’t very well bring [Lawson] back in and expect her to

sit beside June Miller” and interact with the other employees in

such a small office under these circumstances.             J.A. 92.

                                       D.

     Following her termination, Lawson sued Gault in both his

individual and official capacities, seeking monetary damages and

an injunction ordering her reinstatement.              In her complaint, she

alleged that Gault fired her “because of her exercise of her

right   to   run    for   public    office   thereby   violating     her   First

Amendment rights.”        J.A. 3.

     At the conclusion of discovery, Gault moved for summary

judgment.     In addition to asserting immunity defenses, Gault

argued that the First Amendment did not prohibit him from firing

one of his deputy clerks for “perceived political disloyalty.”

J.A. 31.      In making this argument, Gault relied on case law

analyzing    the    Elrod-Branti      doctrine,     discussed   infra,     which

addresses     the    First    Amendment’s      limitations      on    political

patronage dismissals.

     Lawson opposed the motion, asserting that the Elrod-Branti

doctrine     was    inapplicable,     and    that    “[w]hen    a    government

employer retaliates against a government employee for exercising

their First Amendment right to speech the appropriate analysis

falls under the Pickering balancing test.”                J.A. 115.        Thus,



                                       10
Lawson    urged     the   district          court    to    apply     Pickering,       and   not

Elrod-Branti.

       The district court agreed with Gault, and found that Lawson

could not establish that she had a First Amendment right not to

be     terminated     after      she        challenged       Gault      in     her    election

campaign.        Lawson v. Gault, 63 F. Supp. 3d 584, 591 (D.S.C.

2014).        Specifically, the district court held that, although

Lawson’s candidacy implicated her First Amendment rights, she

was terminated legally because she occupied a confidential or

policymaking position.               Id. at 590.            The district court noted

Lawson’s       Pickering      argument,        but        centered      its     analysis     on

Lawson’s      position      as   a     “public       employee      in    a     confidential,

policymaking, or public contact role,” which is a factor drawn

from    the    Elrod-Branti         doctrine.          Id.      In      other    words,     the

district      court   resolved       Gault’s         motion    based      on    the    grounds

Gault     raised,     and     not      on     the    alternative         First       Amendment

doctrine that Lawson raised.

       Having concluded that Lawson failed to establish a First

Amendment violation, the district court granted summary judgment

and    declined     to    address      the     qualified      immunity         and    Eleventh

Amendment      immunity      defenses         that    Gault    had      asserted       in   his

motion.       Id. at 591 n.7, 592.            This timely appeal followed.



                                              II.

                                               11
                                             A.

       Summary judgment is appropriate “if 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 review de novo the district court’s grant of

summary judgment.         T-Mobile Ne. LLC v. City Council of Newport

News, 674 F.3d 380, 384 (4th Cir. 2012).                           We apply “the same

legal standards as the district court” while “viewing all facts

and reasonable inferences therefrom in the light most favorable

to    the   nonmoving    party.”         Id.      at     385     (quoting    Pueschel       v.

Peters, 577 F.3d 558, 563 (4th Cir. 2009)).                         Our review is not

limited to the grounds the district court relied upon, and we

may    affirm   “on     any    basis    fairly          supported    by     the    record.”

Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.

2002)    (citing   Korb       v.    Lehman,       919    F.2d     243,    246     (4th    Cir.

1990)).

                                             B.

       This appeal implicates two lines of cases that grapple with

the limitations on a public employee’s First Amendment rights.

The first doctrine is the “Elrod-Branti” exception, upon which

the district court relied.              This exception flows from Elrod v.

Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507

(1980), which held that policymaking employees may be terminated

for     their   political          beliefs    if        “party     affiliation       is     an

                                             12
appropriate    requirement     for     the     effective   performance       of   the

public office involved.”            Branti, 445 U.S. at 518.           The second

doctrine, based on Pickering v. Board of Education, 391 U.S. 563

(1968), and Connick v. Myers, 461 U.S. 138 (1983), provides that

the First Amendment does not protect public employees when their

speech interests are outweighed by the government’s interest in

providing efficient and effective services to the public.

     The district court held that Gault was entitled to fire

Lawson   under   the     Elrod-Branti      exception,      because   she     held   a

confidential,      policymaking       position     that     required       political

loyalty.     For the reasons set forth below, we vacate the order

granting     summary     judgment    to    Gault    and    remand    for     further

proceedings.     First, we conclude that the district court erred

in granting summary judgment to Gault based on the Elrod-Branti

exception.     Second, we conclude that Gault has not demonstrated

an   entitlement    to     qualified      immunity    or    Eleventh       Amendment

immunity.     Third, we decline to resolve the Pickering balancing

test on the present record.               We address each of these issues

below.

                                          C.

     We begin with the Elrod-Branti exception, which was at the

heart of Gault’s motion for summary judgment and the district

court’s order granting the motion.              As we explain, Gault has not



                                          13
satisfied      the    criteria    of     the    exception,       because    he    has    not

demonstrated that Lawson’s position required political loyalty.

       Elrod v. Burns and Branti v. Finkel held that “[t]he First

Amendment forbids government officials to discharge or threaten

to discharge public employees solely for not being supporters of

the political party in power, unless party affiliation is an

appropriate requirement for the position involved.”                              Smith v.

Frye,    488    F.3d     263,    268   (4th      Cir.    2007)    (quoting       Rutan   v.

Republican Party of Ill., 497 U.S. 62, 64-65 (1990)).                                   This

narrow    exception       to     the     First    Amendment        permits       patronage

dismissals      of     public    employees       in     policymaking       positions     in

order “to give effect to the democratic process.”                            Jenkins v.

Medford, 119 F.3d 1156, 1161 (4th Cir. 1997) (en banc).                                   To

determine whether the exception applies, “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.

       In this circuit, our Elrod-Branti analysis follows a two-

part test adopted from the First Circuit.                     Stott v. Haworth, 916

F.2d    134,    141-42    (4th    Cir.    1990)       (citing    Jimenez     Fuentes      v.

Torres    Gaztambide,      807    F.2d     236,    241-42     (1st   Cir.     1986)      (en

banc)).        Prong one of the inquiry asks, at a general level,

                                           14
whether     the         employee’s      position            requires         “government

decisionmaking         on   issues   where       there   is    room     for   political

disagreement      on    goals   or   their       implementation.”           Id.   at   141

(citation omitted).           If this prong is satisfied, we proceed to

the second prong, under which we look at the employee’s specific

responsibilities, and “focus on the powers inherent in a given

office, as opposed to the functions performed by a particular

occupant of that office.”            Id. at 142 (citation omitted).                    The

government must satisfy both prongs of Stott to establish the

Elrod-Branti defense.

       We turn now to the attributes of Lawson’s position as a

deputy clerk, according to the evidence before us.                          Upon review

of the general duties of deputies in the Union County Clerk’s

Office, we conclude that none of the duties Gault has pointed to

satisfy the first prong of Stott.                   Deputy clerks are generally

responsible for administrative and ministerial tasks, such as

keeping records and managing court accounts.                    We see no evidence

the    deputy   clerks       perform    tasks       that      relate    to    “partisan

political interests or concerns,” and thus we cannot conclude

that    party      affiliation         is        relevant      to      an     employee’s

qualification to serve as a deputy clerk.                      Nader v. Blair, 549

F.3d 953, 960 (4th Cir. 2008); see also Stott, 916 F.2d at 141

(noting the Elrod-Branti analysis requires that the position,

“no matter how policy-influencing or confidential it may be,

                                            15
relates    to     partisan      political         interests         .    .   .    or   concerns.”

(internal quotations omitted)).                     Put another way, there is no

evidence       before    us     that    a    deputy       clerk’s        political        ideology

would affect the manner in which she performed her role as a

deputy clerk.            Critically, Gault has failed to show that his

deputies were required to make decisions “on issues where there

is room for political disagreement.”                           Stott, 916 F.2d at 141.

Therefore,       under     the    first       prong       of    Stott,           Gault    has    not

demonstrated his entitlement to summary judgment.

        Gault    has     also    failed      to    point       to       evidence       that    would

satisfy the second prong of Stott, under which we consider the

specific attributes of Lawson’s position, as a matter of law.

The     deputy    clerk       overseeing       the      Family          Court/Child        Support

Division is responsible for overseeing case intake, receiving

filing    fees,     collecting         and    disbursing            funds      from      the   child

support account, and tracking and reporting court data.                                        Gault

has not argued that a deputy clerk would be better suited to

carry    out     these    specific       tasks     if     she       espoused       a   particular

political       philosophy.            Nor   has     he    pointed           to    any    specific

policies that Lawson was responsible for setting.

        Gault has emphasized Lawson’s supervisory title, but that

role,    standing        alone,    does      not     tell       us      that      Lawson       was   a

policymaking       employee.           Though      Lawson       may       have     set    internal

agendas as a supervisor, our decision in Fields v. Prater makes

                                              16
clear that a supervisory employee does not automatically hold a

position that is subject to the Elrod-Branti exception.                               566

F.3d 381 (4th Cir. 2009).                  In Fields, we explained that an

employee with supervisory power does not necessarily have broad

policy     setting    power.         Id.   at    387.      “If    having   power      over

subordinates were a sufficient condition for exemption from the

requirements of the First Amendment, only the most low-level

government employees would be protected from politically-based

hiring and firing.”            Id.    Thus, the mere fact that Lawson was a

supervisor did not make her a policymaker.

     Citing     this      court’s     en    banc    decision      in   Jenkins,    Gault

contends that the Elrod-Branti exception applies because Lawson,

as a deputy, was Gault’s “alter-ego,” authorized by statute to

perform all the functions of a Clerk of Court.                             Contrary to

Gault’s view, Lawson’s statutory authority does not compel the

application of the Elrod-Branti exception, and Gault’s reliance

upon Jenkins in that regard is misplaced.                        In Jenkins, we held

that several deputy sheriffs in North Carolina were lawfully

terminated for political disloyalty.                    Jenkins, 119 F.3d at 1164.

Our analysis focused on the fact that deputy sheriffs held a

special position under North Carolina law, in that they “act[ed]

in   the    name     of   and    with      powers    conterminous       with    [their]

principal, the elected sheriff.”                 Id. at 1163 (quoting N.C. Gen.

Stat.    § 17E-1).        At    the    same      time,   we   emphasized       that   the

                                            17
“principal” for whom the deputies acted was a political figure

responsible for establishing a law enforcement agenda; it was

therefore critical to our decision that the sheriff’s deputies

played a role in implementing these policies.                    Id. at 1162-63.

Based on the current record, we cannot say the same for Lawson’s

role       as   a   deputy   to   Gault.        Though   Gault   was    an   elected

official, and Lawson did have the statutory authority to act on

his behalf, Gault has not demonstrated that any of the duties

Lawson carried out in his stead involved setting or implementing

a policy agenda.

       For the foregoing reasons, we cannot conclude, as a matter

of law, that “party affiliation is an appropriate requirement

for the effective performance” of Lawson’s former position as a

deputy clerk. 3        Branti, 445 U.S. at 518.          Accordingly, we reverse

the district court’s decision to grant summary judgment to Gault

based on the Elrod-Branti exception.

                                           D.

       Gault next argues that, even if he has not established the

Elrod-Branti defense, he is entitled to qualified immunity from

suit for money damages in his individual capacity.                     According to


       3
       We are, of course, limited in our analysis to the evidence
before us on appeal.       For this reason, we make no broad
proclamations about the roles of deputy clerks generally, for
there may well be attributes of those positions--or Lawson’s
specific position--of which we are not aware.


                                           18
Gault,    the    contours     of    the      Elrod-Branti          exception    were       not

sufficiently clear when he fired Lawson in 2012.

       Qualified        immunity     “shields          government        officials     from

liability for civil damages, provided that their conduct does

not    violate     clearly    established          statutory        or    constitutional

rights within the knowledge of a reasonable person.”                            Meyers v.

Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013) (citing Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)).                          “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 pre-existing law

the unlawfulness must be apparent.”                    Estate of Armstrong ex rel.

Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 907 (4th Cir.

2016) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).

       As our analysis of the Elrod-Branti defense illustrates,

Gault    has    not     demonstrated,        as   he    must,      that     Lawson    was    a

policymaking      employee     for       whom     political        association       was    an

appropriate job requirement.                  We have repeatedly limited the

Elrod-Branti       exception       to    employees       who       occupy    policymaking

positions for which political association is relevant, and we

think our precedent made this requirement sufficiently clear at

the time Gault terminated Lawson.                  See, e.g., Nader, 549 F.3d at

959; Fields, 566 F.3d at 386; Jenkins, 119 F.3d at 1163-64.



                                             19
       In an effort to demonstrate that the law in this area is

muddled, Gault cites a 1996 decision in which we held, in an

unpublished opinion, that qualified immunity shielded a clerk of

court who fired his chief deputy for disloyalty.                    Appellee’s Br.

at 36 (citing Conner v. McGraw, 104 F.3d 358 (4th Cir. 1996)

(unpublished)).            This    does    not     advance      Gault’s    argument,

however, because the fact that the law was unsettled in 1996

tells us nothing about the state of the law nearly sixteen years

later.     As we have explained, the state of the law in 2012 would

have put Gault on notice that political affiliation was not an

appropriate requirement for administrative employees.

       Thus,     we   conclude     that    Gault    has    not    established      the

defense of qualified immunity, and we cannot affirm the district

court’s judgment on that basis.

                                           E.

       Gault next contends that the Eleventh Amendment immunizes

him from suit for monetary damages in his official capacity.                       We

find this argument unpersuasive.

       The Eleventh Amendment protects the states from suit in

federal    court,     as    well    as    “arm[s]   of    the     State    and   State

officials.”       Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013)

(internal        quotations       omitted).         Our      Eleventh      Amendment

jurisprudence differentiates “arms or alter egos of the state

from     ‘mere    political       subdivisions      of    [the]    State    such   as

                                           20
counties or municipalities,’ which, though created by the state,

operate independently and do not share the state’s immunity.”

United    States    ex    rel.   Oberg    v.    Pa.    Higher    Educ.   Assistance

Agency,    804     F.3d   646,    651    (4th    Cir.    2015)    (alteration     in

original) (quoting Kitchen v. Upshaw, 286 F.3d 179, 184 (4th

Cir. 2002)).       To determine whether an entity is an arm of the

state, we consider four nonexclusive factors:

     (1) whether any judgment against the entity as
     defendant will be paid by the State or whether any
     recovery by the entity as plaintiff will inure to the
     benefit of the State; (2) the degree of autonomy
     exercised by the entity, including such circumstances
     as who appoints the entity's directors or officers,
     who funds the entity, and whether the State retains a
     veto over the entity's actions; (3) whether the entity
     is involved with state concerns as distinct from non-
     state concerns, including local concerns; and (4) how
     the entity is treated under state law, such as whether
     the   entity's  relationship   with  the   State  [is]
     sufficiently close to make the entity an arm of the
     State.

S.C. Dep’t of Disabilities & Special Needs v. Hoover Universal,

Inc., 535 F.3d 300, 303 (4th Cir. 2008) (alteration in original)

(internal quotation omitted).

     Applying the Hoover factors to the record before us, we see

no evidence that the Clerk’s Office is anything but a county

agency that operates locally as an independent subdivision of

the state.       Significantly, Gault has not argued that a judgment

against    Gault      would      be     paid    from     the     state    treasury.

Additionally,       the   “Handbook      for    County    Government      in   South


                                          21
Carolina” indicates that the clerk of court and his office draw

their funding from the county, and not the state, which suggests

that the Clerk’s Office operates autonomously from the state.

J.A. 198. 4        Further, Gault’s authority as Clerk of Court was

limited     to    Union       County,     suggesting       that    he   dealt     with   only

local, and not state, concerns.                      Based on this evidence, we

cannot conclude that the Clerk’s Office is an arm of the state

of South Carolina.

      In support of his Eleventh Amendment defense, Gault points

to   nothing      more     than      a   paragraph    of    Lawson’s      complaint      that

calls the Clerk’s Office a “state office” and an 1883 decision

from the Supreme Court of South Carolina that characterizes a

clerk of court as “State officer” for electoral purposes, State

ex   rel.    Anderson         v.     Sims,   18    S.C.     460,    463    (1883).        See

Appellee’s        Br.    at    41.       Neither     the    1883    case    nor     Lawson’s

complaint        resolve      the    Eleventh      Amendment       question     before    us,

because Gault must do more than simply establish a link between

the state and his office.                 Instead, Gault must demonstrate that

the Union County Clerk’s Office is an arm of the state, and not

an independent subdivision of the state.                            Gault’s conclusory

assertion that the Clerk of Court is a “state officer” does not

satisfy his burden to establish Eleventh Amendment immunity.

      4 The state does, however, provide “an                               annual    salary
supplement” to the Clerk of Court. J.A. 198.


                                              22
     In the absence of any evidence tying the Clerk’s Office to

the state of South Carolina, we conclude that Gault has failed

to demonstrate that the Eleventh Amendment immunizes him from

Lawson’s monetary damages claim.

                                          F.

     We    next     consider      the    Pickering         issue       that       Lawson    has

raised.     Simply put, the history of this case does not present

us with an adequate Pickering record to review.                         Gault moved for

summary    judgment      based     on    Elrod-Branti,           the    district       court

granted    the    motion   based    on    Elrod-Branti,              Gault    urged    us   to

affirm the order based solely on Elrod-Branti, and we now hold

that Gault failed to establish the Elrod-Branti defense.                                   This

resolves the appeal, and we need not go any further.                                Although

we can affirm on any basis apparent from the record, we conclude

that we cannot resolve the Pickering question on this record.

     To    provide      context,    we    begin          with   an     overview       of    the

Pickering    balancing      test.         As        we    explained          in    Smith    v.

Gilchrist,       “the   government,      as    an    employer,         ‘is    entitled       to

maintain    discipline      and    ensure      harmony          as    necessary       to    the

operation and mission of its agencies,’” and therefore has “an

interest in regulating the speech of its employees.”                                749 F.3d

302, 308 (4th Cir. 2014) (quoting McVey v. Stacy, 157 F.3d 271,

277 (4th Cir. 1998)).             When these interests conflict with the

free speech rights of public employees, Pickering tells us “to

                                          23
arrive at a balance between the interests of the [employee], as

a citizen, in commenting upon matters of public concern and the

interest     of     the    State,     as   an   employer,    in   promoting      the

efficiency    of     the     public    services    it     performs   through     its

employees.”       391 U.S. at 568.

     In this balancing test, “the government bears the ‘burden

of justifying the discharge on legitimate grounds.’”                     Gilchrist,

749 F.3d at 309 (quoting Rankin v. McPherson, 483 U.S. 378, 388

(1987)). 5        However,    the   government     need   not   “prove    that   the

employee’s    speech       actually    disrupted    efficiency”;     rather,     its

burden is to show that “an adverse effect was ‘reasonably to be

apprehended.’”            Id. (quoting Maciariello v. Sumner, 973 F.2d

295, 300 (4th Cir. 1992)); see also Jurgensen v. Fairfax Cty.,

745 F.2d 868, 879 (4th Cir. 1984) (“In the application of this

test, . . . it is not necessary for the agency to prove that

morale and efficiency in the agency have actually been adversely

affected by the publication; it is sufficient that such damage

to morale and efficiency is reasonably to be apprehended.”).

     To assess the government’s interest, we must consider the

context of the employee’s speech.               Rankin, 483 U.S. at 388 (“In

performing the balancing, the [employee’s] statement will not be

     5 The balancing test is the second of the three elements of
a First Amendment retaliation claim. McVey, 157 F.3d at 277-78.
The other two elements (speech on a matter of public concern and
causation) are not at issue here.


                                           24
considered    in    a    vacuum;    the    manner,    time,    and    place   of   the

employee’s expression are relevant, as is the context in which

the dispute arose.”).            In Ridpath v. Board of Governors Marshall

University,    we       listed    nine     non-exhaustive      factors      that   the

Supreme Court has considered significant:

      [W]hether a public employee’s speech (1) impaired the
      maintenance of discipline by supervisors; (2) impaired
      harmony among coworkers; (3) damaged close personal
      relationships; (4) impeded the performance of the
      public employee’s duties; (5) interfered with the
      operation of the institution; (6) undermined the
      mission of the institution; (7) was communicated to
      the public or to coworkers in private; (8) conflicted
      with the responsibilities of the employee within the
      institution; and (9) abused the authority and public
      accountability that the employee’s role entailed.

447   F.3d   292,   317     (4th    Cir.    2006)    (citing     McVey,     157    F.3d

at 278).     As the sheer number of Ridpath factors demonstrates,

this inquiry is fact-intensive and context-specific, and will

depend on the arguments the government develops and the evidence

it offers.

      Turning to the case at hand, we conclude that Gault has not

developed a Pickering argument for us to analyze.                          When Gault

moved for summary judgment, he did not raise Pickering as a

basis for the motion.            Even after Lawson raised Pickering in her

opposition    brief, 6     Gault     dismissed       Pickering       and   urged   the


      6This was a curious choice, because Lawson could have
refuted the motion by insisting that the Elrod-Branti exception
did not apply.   Instead, she took on the task of defending her
(Continued)
                                           25
district court to decide the case based on Elrod-Branti.                                 See

J.A. 220.     Gault argued that it made no difference whether the

court analyzed the complaint as a free speech claim, or a claim

of   retaliation      for     disloyal     candidacy,         because       Elrod-Branti

governed both theories.              See J.A. 225 (“[B]ecause, under South

Carolina     law,    Plaintiff       was   regarded         as    the   alter      ego   of

Mr. Gault,     he    could     terminate        her    for       political    disloyalty

and/or     ‘for     speech    displaying        that    political        disloyalty.’”

(quoting Bland, 730 F.3d at 394)).

     It is unsurprising, then, that the district court resolved

the case on Elrod-Branti grounds.                 The district court’s opinion

decided the motion based on its view of Lawson’s position as a

“confidential, policymaking” employee, a consideration rooted in

the Elrod-Branti doctrine.              In doing so, the decision tracked

the grounds under which Gault moved, because those were the only

arguments the motion required the court to resolve. 7

     This     pattern       continued      on    appeal.           Before    us,    Gault

defended the district court’s order exclusively on Elrod-Branti

grounds.      Gault’s        brief    makes     only    a    passing     reference        to




lawsuit under two different doctrines.      Importantly, however,
she chose not to move for summary judgment.
     7 Because Gault did not assert Pickering arguments in his

motion, it certainly was not error for the district court to
decline to analyze that doctrine.


                                           26
Pickering,      in     which   he   declined      to    adopt    the    application     of

Pickering to this case:

            Lawson insists that the fact that her First
       Amendment claim rests not merely on her candidacy but
       also on her speaking out in support of her candidacy
       somehow gives added heft to her First Amendment claim
       that must and can be overcome only by Gault’s making
       an evidentiary showing, under a Pickering-Connick
       balancing of interests, that her campaign speech
       actually disrupted the efficient operation of the
       clerk’s office. . . . She is mistaken.

Appellee’s Br. at 30-31.              Further, Gault’s substantive analysis

of the balancing test consists of no more than one sentence.

See Appellee’s Br. at 30-31.                 Without additional development,

this is too slender a reed on which to base an analysis as fact-

specific as Pickering requires.

       For example, it is unclear whether Gault means to argue

that       Lawson’s    specific     comments      about   June    Miller    threatened

office efficiency, or whether Lawson’s failed campaign alone was

a source of office disruption.               We do not mean to say that Gault

has    failed    to     justify     his   actions       under    Pickering.        As   we

discuss below, the limited record before us indicates that Gault

may have colorable Pickering arguments.                    We simply hold that we

cannot       resolve    the    issue      based    on     what    the    parties    have

presented to us. 8


       8
       For the same reason, we decline to decide whether Gault
would be entitled to qualified immunity under a Pickering
theory.
(Continued)
                                            27
                                                G.

      We   turn     now    to   the    dissent’s           contention      that     Lawson   is

entitled to summary judgment.                   This assertion is unusual to say

the least, because, as we have noted, Lawson never moved for

summary judgment.           We should certainly exercise caution before

granting a party relief she did not seek.                         And neither party has

asserted Pickering as the ground for a motion, which hinders a

meaningful        Pickering       analysis,          and     makes    it      premature      to

evaluate the issue in the context of this appeal.                             Additionally,

we   disagree      that    there      is   no    evidence      that     Lawson’s      conduct

interfered with the operations of the Clerk’s Office.                                 In view

of the Ridpath factors, as we discuss below, we cannot conclude

that Pickering          compels    a    judgment       in     Lawson’s       favor    at   this

stage of the case, because the record indicates that Gault may

have colorable Pickering arguments. 9

      In the course of her campaign, Lawson made a variety of

statements      about     the   Clerk’s         Office      and   her    colleague,        June

Miller.     Some of her comments questioned “where the funds were

coming     from    to     pay   Ms.    Miller,”        in     light     of    the    previous

embezzlement scandal.             J.A. 186.          Lawson also stated that “June




      9To be clear, we do not reach the merits of this issue, and
the discussion that follows is only intended to illustrate why
Lawson’s entitlement to summary judgment, as the dissent
proposes, is far from obvious.


                                                28
Miller should not be in the clerk of court’s office,” that the

“county      council       doesn’t      want     June    Miller     there,”      and    “June

Miller is already drawing her social security and retirement.”

J.A. 88.

       As    we    consider       the   Ridpath      factors,     we   first     note    that

Lawson held a supervisory position, and therefore her statements

would       have    a      heightened      effect        within     the   office.         In

particular,          Lawson’s         negative       public       comments       about    an

identified co-worker could affect Lawson’s ability to maintain

discipline in her division.                 In fact, the record reflects that

Gault expressed concern about this, and noted that he expected

that other co-workers would have difficulty working with Lawson

going forward.            J.A. 92.

       For    similar       reasons,       Lawson’s      comments      might     have    been

expected to impair harmony among co-workers and damage close

personal relationships.                 It is of particular significance in

this    regard       that       the   Clerk’s    Office     consisted      of    only    ten

employees.         And Gault does assert--in the only sentence of his

appellate         brief    to    address    Pickering--that         the   potential       for

Lawson’s public comments to sow discord in his office was a

serious concern.            See Appellee’s Br. at 31.

       Ridpath       also       counsels    us      to   consider      whether    Lawson’s

statements would have interfered with the operation and mission

of the Clerk’s Office.                Given Lawson’s public-facing role, Gault

                                               29
might argue that her statements would have had this effect.                            As

the    Supreme     Court    Clerk    Manual        recognizes,       the   Clerk     and,

statutorily, the Clerk’s deputy, are the public faces of the

Office.      See Clerk of Court Manual § 1.21 “Public Relations,”

http://www.judicial.state.sc.us/ClerkOfCourtManual/displaychapte

r.cfm?chapter=1#1.21.         In publicly questioning Miller’s presence

in the Office and the provenance of the funds used to compensate

her,    Lawson’s     comments       could        have    undermined     the    public’s

confidence in the Office’s integrity and thereby compromised the

Office’s      performance.          As   we       have    noted,     maintaining     the

public’s trust is especially important to the operations of the

Family Court/Child Support Division, which Lawson oversaw.

       Of all of the factors set out in Ridpath, the question of

whether      the   speech    was     communicated         to   the    public    or     to

co-workers in private is arguably the most significant here.

Lawson’s comments publicly associated a colleague, by name, with

accounting irregularities with respect to the very account that

the two were responsible for jointly overseeing in the Clerk’s

Office. 10     Gault explained at his deposition that after Lawson


       10
        Lawson’s own affidavit acknowledges that her statement
drew a connection between Miller and alleged accounting
irregularities:

     My concerns were where the funds were coming from to
     pay Ms. Miller who was there to help clean up the
     damage  caused  by   the  former  Clerk  of  Court’s
(Continued)
                                            30
made these comments, he “couldn’t very well bring [her] back in

and expect her to sit beside June Miller.”              J.A. 92.   Although

Lawson and Miller did not literally work side-by-side, it is

undisputed that they did work together to jointly manage the

account in question and would need to continue to do so if

Lawson were to return as deputy.            And the fact that Gault and

Lawson maintained a cordial relationship has no bearing on how

Lawson’s comments would have affected Miller, or the Office as a

whole.

      Our recent decision in Gilchrist provides useful guidance

here.     In Gilchrist, we considered a First Amendment challenge

brought    by   an   assistant   district    attorney    (“ADA”)   who   was

terminated for making certain public comments while campaigning

for Mecklenburg County district court judge.              749 F.3d at 304-

05.     During the campaign, the ADA gave an interview where he

spoke out against a defensive-driving course run by a nonprofit




     embezzlement scandal. . . . After having gone through
     the Morris scandal and being investigated by SLED, I
     had a heightened sense of alertness, especially when
     it involved funds of the Clerk’s Office.
J.A. 186-87. From the perspective of the Clerk’s Office staff,
there could be no benign reason for Lawson to mention Miller by
name in connection with these suspicions. Whether Lawson meant
to suggest that Miller might have been embezzling funds, or
whether she merely thought Miller was being paid with embezzled
funds, the statement clearly associated Miller with suspicious
accounting.



                                    31
organization independent of the DA’s office and unrelated to the

ADA’s individual responsibilities.                    Id. at 305 n.1.             The program

allowed those convicted of traffic violations to receive more

lenient punishments, and “substantially reduced the number of

cases    that      the   DA’s    office     and      the    courts       were     required     to

handle.”       Id. at 305.            Evaluating these facts under Pickering,

we   held      that      the    defendant       failed           to   justify      the    ADA’s

termination.        Id. at 309, 313.

     Importantly, in Gilchrist, we relied on facts that were

markedly       different       from    those    here.            In   that      case,    it    was

central     to     our      decision     that       “none        of   the    concerns     Smith

expressed in the interview had to do with Mecklenburg County

District       Attorney      Office      policy      or     in    any    way     impugned      the

authority or credibility of the DA’s office.”                                   Id. at 309-10

(footnote and internal quotation marks omitted).                                 For the same

reason      that      the      ADA’s     commentary         did       not      “pertain[]      to

circumstances         within     [the    DA’s]       control,”          there    was    also   no

basis    for     concluding       that    the       ADA’s    public         statements    would

create “problems with harmony or discipline in the DA’s office

such that the efficiency of the office would be expected to be

adversely affected.”             Id. at 310.          Here, the facts are the very

converse of those we relied on in Gilchrist:                                 Lawson’s speech

targeted her own office and her own colleague, whereas the ADA’s

statements in Gilchrist did not.

                                               32
       The dissent accepts Lawson’s argument that Gault failed to

adduce    evidence      of   any    actual       disruption   within      the   Clerk’s

Office.      This argument fails for several reasons.                         First, it

misperceives both the procedural history of this case and the

nature of Gault’s burden.                  As we have already discussed, the

absence of developed Pickering arguments is unsurprising, given

that Gault never moved for summary judgment based on Pickering,

and had no reason to develop this theory.                    It would be unfair to

fault him for not doing so.                For example, the dissent points to

the absence of testimony in the record from other Clerk’s Office

employees.      We cannot know whether other employees were deposed,

or   whether    Gault    would      wish    to    depose    them   to     explore     this

issue.     If anything, that is a reason to remand the case for

further proceedings, and not a basis for entering judgment for

Lawson.

       Moreover, our precedent does not require an employer to

proffer evidence that the employee’s speech caused disharmony or

ill feeling.         In Maciariello v. Sumner, we examined a First

Amendment      claim    brought       by    two    officers     who     conducted      an

unauthorized investigation of their captain.                       973 F.2d at 297,

300.     We credited the police chief’s interest in departmental

morale,     stressing        that     it     was     unnecessary        to    determine

“[w]hether     there     was    any    concrete      evidence      that      morale    was

disrupted”     because       “the   potential       for    disruption      [was]    self-

                                            33
evident.”        Id. at 300; see also Gilchrist, 749 F.3d at 309

(emphasizing      that,    under    Maciariello,     a     public   employer      need

only     show    that    an    adverse     effect    was    “reasonably      to    be

apprehended”).

       Finally, it would be a mistake to analyze Gault’s interests

based on the morale in the Clerk’s Office at the time Lawson was

fired,    because   the       Pickering   balance    is    necessarily    forward-

thinking, looking to anticipated harms.                  All that our precedent

requires    is    that    an   employer    reasonably      anticipate    a   future

disruption.       See Jurgensen, 745 F.2d at 882 n.21 (“[W]e do not

see the necessity for an employer 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.”

(quoting Connick, 461 U.S. at 152)).

       In sum, based on the current record, Gault could certainly

develop    arguments      that     Lawson’s     speech     interfered    with     the

operations of the Clerk’s Office.               Therefore, we do not think it

is appropriate for us to direct summary judgment for Lawson.

                                          ***

       The dissent proposes that we not only reach an undeveloped

issue that was not the subject of Gault’s motion, but that we

take a leap further and grant summary judgment to a party who

neither moved for summary judgment nor requested that relief on



                                          34
appeal. 11   We cannot agree with this proposal.           Instead, we have

confined our decision today to the narrow question before us:

whether Gault’s motion for summary judgment had merit.                     Having

concluded that it did not, we vacate the order granting the

motion and return the case to the district court.                     If Gault

chooses to pursue a Pickering defense on remand, the merits of

his   arguments   will   be   for   the    district   court,    in   the   first

instance, to resolve.



                                     III.

      For the foregoing reasons, the judgment of the district

court is vacated and remanded.            We leave to the sound discretion

of the district court the decision whether to permit additional

discovery,   allow   additional     motions     for   summary   judgment,      or

calendar the case for trial.

                                                       VACATED AND REMANDED




      11
       We note that neither of the cases cited by the dissent--
Sharp Elecs. Corp. v. Deutsche Fin. Servs. Corp., 216 F.3d 388,
398 (4th Cir. 2000), and U.S. Dev. Corp. v. Peoples Fed. Sav. &
Loan Ass’n, 873 F.2d 731, 735–36 (4th Cir. 1989)--expressly held
that a court of appeals may direct summary judgment to a non-
moving party without giving notice to the parties. We need not
opine on our authority to enter summary judgment for Lawson
without first giving notice to Gault, because, as we have
explained, the circumstances of this appeal counsel against
directing such an order.


                                      35
DAVIS, Senior Circuit Judge, dissenting:

      With respect, I believe that my friends in the majority

misapply and effectively rewrite a portion of First Amendment

jurisprudence     in    their     analysis      of    this    case.      First,    the

majority opinion declines to render partial summary judgment for

Plaintiff-Appellant        Melanie       Lawson,     despite     determining      that

Defendant-Appellee        William    Gault’s        affirmative    defenses     under

the   Elrod–Branti     exception, 1      qualified      immunity,       and   Eleventh

Amendment     immunity     fail     as    a    matter    of     law,    and   without

identifying    any     genuine     issues      of    material    fact    that   would

preclude    the   entry    of     judgment     on    liability.         Second,    the

majority opinion wades into the deep end of a large pool of

obiter dicta with its extensive discussion of how its imagined

facts might inform application of the Pickering balancing test. 2

Remarkably, it actually suggests that Gault could conceivably

satisfy his heavy burden of showing that Lawson’s interest in

      1As discussed below, the Elrod–Branti exception allows a
public employer to terminate an employee based on political
party affiliation where party loyalty is relevant to the
employee’s position. See Branti v. Finkel, 445 U.S. 507 (1980);
Elrod v. Burns, 427 U.S. 347 (1976).

      2Under the Pickering balancing test, as explained further
below, an adverse employment action taken in response to a
public employee’s speech may violate the employee’s First
Amendment rights if the employee’s “interest in speaking upon
the matter of public concern outweighed the government’s
interest in providing effective and efficient services to the
public.” Smith v. Gilchrist, 749 F.3d 302, 308 (4th Cir. 2014)
(quoting McVey v. Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998)).


                                          36
speaking upon a matter of public concern in the course of her

candidacy for elective office—surely political speech deserving

of the protective shield afforded by settled First Amendment

principles—did        not     outweigh    the     government’s           interest         in

providing       effective     and    efficient    services         to    the        public,

Gilchrist, 749 F.3d at 308 (quoting McVey, 157 F.3d at 277),

simply     by     asserting        that   Lawson’s        speech        would       “self-

evident[ly]”       cause     some    disruption      in    the     workplace,            see

Appellees’ Br. 2.            And finally, the majority opinion contends

that this is the case despite the absence of even a scintilla of

evidence     that     such     a     disruption     was     “reasonably             to    be

apprehended.”       Gilchrist, 749 F.3d at 309 (quoting Maciariello

v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992)); Jurgensen v.

Fairfax Cty., 745 F.2d 868, 879 (4th Cir. 1984).                                I cannot

agree.

       Each of my good friends forming the majority in this case

is a member of the unanimous panel that today decides Brickey v.

Hall, No. 14-1910, slip op. (4th Cir. 2016), which is cited and

discussed at numerous points in this dissenting opinion.                            Though

assuredly dissimilar in some respects, the two cases share much

in common.

       The police officer candidate for elective office in Brickey

made     statements     in    a     questionnaire     published          in     a    local

newspaper (some but not all of which are set forth infra p. 54)

                                          37
that any reasonable person would regard as calling into serious

question his police chief’s overall competence and ability to

manage a small town’s troubled police force.            See Brickey, slip

op. at 4–5.      Parsing the plaintiff’s numerous statements that

were both directly and indirectly critical of his department and

its newly installed chief, the Brickey panel explicitly agrees

with the district court’s assessment that virtually all of the

statements were entitled to First Amendment protection and could

not support a decision by the chief to terminate the plaintiff.

Id. at 13 n.3 (“We agree with the district court that it was

clearly established that Brickey’s other comments were entitled

to   First   Amendment    protection.”).     On    interlocutory   appeal,

however, the panel reverses the district court’s denial of the

police chief’s motion for summary judgment based on qualified

immunity, solely with regard to the plaintiff’s erroneous, and

indeed, false, allegations in the newspaper questionnaire that

police funds for a drug education program had been “misused.”

Id. at 4 (“I went in to talk to [the chief] about ordering the

supplies for the [drug education program].          I was told there was

no money to place the order.        After checking with the accounts

payable clerk to see where the $500 in the police department

budget had been spent, I was shown several invoices that were

charged   to   [that]    account.   The    items   on   the   invoices   had



                                    38
nothing     to    do    with     the    [drug    education]           program.”           (citation

omitted)).

       Thus, Brickey holds, with particular emphasis on the fact

that the erroneous “missing funds” allegations were made in the

context of a small town’s small police department and about its

newly installed chief, that, at the proper level of specificity,

the outcome of Pickering balancing as to those allegations was

not    “clearly        established”        at        the     time        the    plaintiff          was

terminated in May 2012.                Id. at 16 (noting that the dispositive

question    facing       the     police    chief       was,        “[W]hen      does      a   police

chief’s need to maintain discipline and harmony permit him to

infringe on an officer’s right to make public statements as a

political        candidate        insinuating          wrongdoing              by   a     superior

officer?”).

       Although        (given    that    Brickey       comes        to    this      Court     as    an

interlocutory          appeal)    the     Brickey          panel    decides         the    case     on

qualified        immunity        grounds,        the        reasoning,          language,          and

precedents relied on in that case provide powerful support for

the reasoning in, and the gravamen of, this dissent and its

Pickering        analysis:             First,        actual        record       evidence,          not

unadorned    and       bald     speculation,          is    necessary          to   support        the

assertion by a defendant in a First Amendment retaliation case

that respect for a public employee’s speech would impose too

high    a    cost       on      her    government           employer.               Second,        the

                                                39
paramilitary       character     of   a    law    enforcement      agency    requires

greater restraints on the First Amendment rights of officer-

employees in such agencies, as compared to the rights of those

not so employed.         And third, critical to Pickering balancing is

the particularized context in which the plaintiff engages in the

disputed speech.         In my judgment, as I show within, faithful

adherence     to     these      longstanding,           undisputed,     foundational

precepts compels a decision in favor of Lawson under Pickering

balancing on the record in this case.

      Correctly discerning no genuine disputes of material fact,

the majority opinion appropriately reverses the district court’s

grant of summary judgment in favor of Gault under the Elrod–

Branti doctrine, and it rules out Gault’s qualified immunity and

Eleventh Amendment immunity defenses, yet it refuses to render

judgment for Lawson.         Moreover, the majority opinion declines to

resolve the Pickering balancing test, even though it analyzes

the issue at length and suggests that Gault may have a viable

defense on this ground.           I conclude, by contrast, not only that

(1)   Gault     failed     to    satisfy         his    burden    under     Pickering

balancing;    but    furthermore,         that    (2)    the   narrow   Elrod–Branti

exception in First Amendment jurisprudence, invoked by Gault,

plainly   did      not   allow    Gault     to     lawfully      terminate    Lawson;

(3) qualified immunity did not protect Gault from liability in

his individual capacity; and (4) Eleventh Amendment immunity did

                                           40
not bar suit for damages against Gault in his official capacity.

Accordingly, I would reverse the district court’s decision in

all respects and remand this action with instructions to enter

judgment       on     liability          in      Lawson’s            favor       and     for      further

proceedings on relief as necessary.

                                                     I.

                                                     A.

     I begin where the majority opinion concludes by addressing

first    the    Pickering       balancing             test,          as    I    believe      that      this

issue’s resolution at this juncture is proper and central to

this case.          “Not only does the First Amendment protect freedom

of   speech,        it   also       protects           ‘the          right       to    be    free      from

retaliation         by   a    public       official             for       the    exercise        of    that

right.’”        Gilchrist,          749       F.3d        at    308       (quoting      Suarez        Corp.

Indus.    v.    McGraw,       202        F.3d    676,          685    (4th       Cir.    2000)).           An

adverse     employment          action          taken          in     response          to   a      public

employee’s          speech     generally             violates             the    employee’s           First

Amendment      rights        when    (1)        “the       employee            ‘was   speaking        as   a

citizen upon a matter of public concern’ rather than ‘as an

employee       about     a     matter           of     personal            interest’”;         (2)     the

employee’s      “interest           in    speaking             upon       the    matter      of     public

concern     outweighed          the        government’s               interest          in     providing

effective and efficient services to the public”; and (3) the

employee’s “‘speech was a substantial factor’ in the employer’s

                                                     41
decision to take action against [her].”                    Id. (quoting McVey, 157

F.3d at 277–78).

       Gault does not dispute that the first and third prongs of

this test are easily satisfied here, so I, like the majority,

focus    on     the   second   prong,      known   as     the    Pickering    balancing

test.     The relevant question is thus whether Lawson’s interest

in speaking upon a matter of public concern outweighed Gault’s

interest in providing effective and efficient services to the

public in his operation of the Office of the Clerk of Court.

See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).                             To

make     this     determination,         “the     First    Amendment      requires    a

delicate balancing of the competing interests surrounding the

speech and its consequences.”                   Garcetti v. Ceballos, 547 U.S.

410, 423 (2006); see also McVey, 157 F.3d at 277 (noting that,

in     First     Amendment       cases,     “a     sophisticated       balancing     of

interests       is    required      to    determine     whether     the   plaintiff’s

constitutional rights have been violated”).

       Importantly, no one disputes that Gault bears the “burden

of justifying the discharge on legitimate grounds.”                          Gilchrist,

749 F.3d at 309 (quoting Rankin v. McPherson, 483 U.S. 378, 388

(1987)).         Although,     as   the    majority       opinion   emphasizes,      the

public    employer      need     not     “prove    that    the    employee’s     speech

actually       disrupted     efficiency,”         the   employer     must    show    (by

adducing actual record evidence) that “an adverse effect was

                                            42
‘reasonably        to   be    apprehended’”      in    light    of    the     context

surrounding      the    speech.      Id.    (quoting    Maciariello,        973   F.2d

at 300); accord Durham v. Jones, 737 F.3d 291, 302 (4th Cir.

2013).

      This Court’s recent decision in Gilchrist, which two of us

on the present panel joined, demonstrates that the Pickering

balancing test requires a public employer to offer more than a

bald assertion that an employee’s speech could have impaired the

functioning of the workplace to avoid liability.                     See Gilchrist,

749 F.3d at 310–12.           Rather, our precedent requires the employer

to present actual record evidence showing that it was reasonable

to expect the employee’s speech to cause an adverse effect on

the     office’s    ability     to   serve      the   public     effectively      and

efficiently.        See id.       In Gilchrist, district attorney (“DA”)

Peter Gilchrist terminated assistant district attorney (“ADA”)

Sean Smith after Smith ran for Mecklenburg County district court

judge     and,     in   the    course      of   his   campaign       for    election,

criticized a defensive-driving program that the DA’s office had

recommended to the public.              Id. at 305–06.         Gilchrist in fact

conceded before the federal district court that Smith’s interest

in speaking on this public matter outweighed the government’s

interest in providing effective and efficient public services,

and the panel noted unanimously that this concession was “with



                                           43
good reason.”     Id. at 309.       We held that, as a matter of clearly

established law,

     it is the right of an ADA running for public office
     not to be fired for speaking publicly in his capacity
     as a candidate on matters of public concern when the
     speech is critical of a program that substantially
     reduces the DA’s office’s caseload but there is no
     reason to believe the speech will negatively impact
     the DA’s office’s efficiency.

Id. at 312 (emphasis added).            Properly understood, that clearly

stated holding controls the result of Pickering balancing in

this case.    Or at least, it should.

     Indeed, there is no binding or persuasive authority to the

contrary.      In previous decisions, the Supreme Court and this

Court have both required a showing of actual record evidence

from which it is reasonable to anticipate a disruption in the

workplace     likely   to    diminish      the   provision   of   governmental

services.     See, e.g., Rankin, 483 U.S. at 388–89 (“While [the

employee’s] statement was made at the workplace, there is no

evidence that it interfered with the efficient functioning of

the office.” (emphasis added)); Durham, 737 F.3d at 301 (“[W]e

discern no substantial evidence in the trial record supporting

[the employer’s] claim” that its “interest in maintaining an

efficient and effective law enforcement agency outweighed [the

employee’s]     rights      under    the     First   Amendment.”     (emphasis

added)); Bland v. Roberts, 730 F.3d 368, 387 (4th Cir. 2013)

(“[D]espite the Sheriff’s reference to the need for harmony and

                                        44
discipline in the Sheriff’s Office, nothing in the record in

this case indicates that [the employee’s] Facebook support of

[the Sheriff’s political opponent’s] campaign did anything in

particular to disrupt the office or would have made it more

difficult for [the employee], the Sheriff, or others to perform

their work efficiently.” (emphasis added)); Robinson v. Balog,

160 F.3d 183, 189 (4th Cir. 1998) (“In view of the lack of

evidence supporting the [government’s] interest in disciplining

[the   employees]   for   their   speech,   we   hold   that   the   district

court erred in precipitously resolving the Pickering balance in

favor of the defendants.” (emphasis added)). 3                 Moreover, the


       3
       Several other circuits also require a showing of actual
record evidence from which one may reasonably expect a workplace
disruption to arise. See, e.g., Jordan v. Ector Cty., 516 F.3d
290, 299 (5th Cir. 2008) (“We need not pause long on the
balancing, for there is no record evidence that [the employee’s]
political activities caused disruptions that would justify
termination.” (emphasis added)); Murphy v. Cockrell, 505 F.3d
446, 453 (6th Cir. 2007) (“[The employer] presented no evidence
that [the employee’s] speech impeded her duties at the . . .
office.” (emphasis added)); Sexton v. Martin, 210 F.3d 905, 912
(8th Cir. 2000) (“[A] simple assertion by the employer that
contested speech affected morale, without supporting evidence,
is not enough . . . .      Mere allegations of disruption are
insufficient to put the Pickering balance at issue.” (emphasis
added) (citations and internal quotation marks omitted)).

     Unsurprisingly, courts have also recognized that even a
showing of some tension may be insufficient to tip the scale in
favor of the public employer where the employer fails to offer
any evidence that one could reasonably expect the disharmony to
actually interfere with the government’s efficient operation.
See, e.g., Murphy, 505 F.3d at 453 (“[I]t is impermissible to
allow a superior to terminate an employee simply because
(Continued)
                                    45
majority opinion provides no support for its assertion that it

“cannot resolve the Pickering question on this record,” ante

at 23, nor does it meaningfully distinguish this case from any

of the prior cases in which this Court has consistently held

that       a   lack    of   record   evidence   of   a       reasonably   anticipated

disruption        to    the   workplace   warrants       a    final    decision   under

Pickering in favor of the plaintiff, not remand to provide the

defendant another opportunity to meet his burden. 4




tensions that did not impede the functions                        of    the   workplace
arose over such protected speech.”).

       4
       To be sure, in Gilchrist, we reversed the erroneous grant
of summary judgment for Gilchrist and remanded for further
proceedings without explicitly rendering judgment in favor of
Smith.   See 749 F.3d at 313.   But, unlike the majority opinion
in this case, the Court in Gilchrist conducted the Pickering
balancing test and, upon observing that Gilchrist presented no
evidence of a reasonably anticipated workplace disruption,
reached a final decision on that issue in favor of Smith.    See
id.   The subsequent trial briefs in Gilchrist reveal that the
parties and the district court fully understood that the sole
issue remaining after remand was that of causation.    See Pl.’s
Trial Br. 1, Smith v. Gilchrist, No. 3:10-CV-00636-RJC-DLH
(W.D.N.C. June 22, 2015); Def.’s Trial Br. 1, 5, Gilchrist, No.
3:10-CV-00636-RJC-DLH (W.D.N.C. June 22, 2015). In other words,
there remained in that case a genuine factual issue related to
the First Amendment retaliation claim that warranted further
proceedings before liability could be determined. See Love-Lane
v. Martin, 355 F.3d 766, 776 (4th Cir. 2004) (“The first two
elements involve questions of law.          The third element,
causation, can be decided on summary judgment only in those
instances when there are no causal facts in dispute.” (citation
and internal quotation marks omitted)).    No such issue exists
here. Accordingly, rendering judgment on liability in this case
is entirely appropriate.


                                          46
                                            B.

                                            1.

      Although the majority opinion analyzes the issue at length,

it ultimately declines to reach a conclusion regarding Pickering

balancing, declaring that the record has not been sufficiently

developed to allow for a fair analysis.                            In particular, the

majority opinion seemingly contends that, in the district court,

Gault was not seasonably put on notice that the principles of

Pickering were at play in this case.

      The majority opinion’s decision not to reach a conclusion

under    Pickering       is   erroneous        for    multiple         reasons.        First,

examination        of     the       proceedings        in        the     district       court

demonstrates that the parties presented, and the district court

entertained,       both       written      and       oral     arguments         related    to

Pickering balancing.            Indeed, in response to Gault’s motion for

summary judgment, Lawson specifically contended that Pickering

balancing,       and    not   the     Elrod–Branti          exception,      provided       the

proper    doctrinal       framework       within      which      this    case     should    be

resolved.        And Gault’s highly experienced counsel argued at the

hearing     on    the   motion      for   summary      judgment         that    “it   really

doesn’t matter . . . how [Lawson’s claim is] analyzed.”                                   Hr’g

Tr.   13,   Lawson      v.    Union     Cty.     Clerk      of    Court,    No.    7:13-CV-

01050(TMC) (D.S.C. May 5, 2014).                       In fact, at a hearing on

Gault’s     motion      for   reconsideration          (of       the    district      court’s

                                            47
original denial of summary judgment as to injunctive relief),

Gault’s counsel made clear that, although for a period the focus

of    the     case    had    been     on       the     protected      status    of    Lawson’s

candidacy, he fully understood that the case was also about the

protected       status       of   Lawson’s           speech    in   connection        with    her

candidacy:      “Your       honor,        I    certainly      don’t     deny   bearing       some

responsibility for not being as clear as I could have, maybe.

But    once    this     case      gravitated          into    the    Pickering       thing,    we

addressed       that    in     the    reply          brief    and   argued     that    we    were

entitled to summary judgment [on that basis as well].”                                Hr’g Tr.

6–7,    Lawson,       No.    7:13-CV-01050(TMC)               (D.S.C.    Oct.    30,    2014).

Thus, Gault had sufficient notice that he bore the burden of

defending his actions under Pickering.                              That Gault failed to

satisfy       this     burden,       as       discussed       below,     warrants      summary

judgment       for     Lawson;       it       does    not    warrant    a    remand    to     the

district court to provide him an additional opportunity to do

so.

       Further, “[w]hen an issue or claim is properly before [an

appellate] court, the court is not limited to the particular

legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction

of governing law.”             Kamen v. Kemper Fin. Servs., Inc., 500 U.S.

90, 99 (1991); accord United States ex rel. May v. Purdue Pharma

L.P., 737 F.3d 908, 913 n.3 (4th Cir. 2013).                                   Whether Gault

                                                 48
violated    Lawson’s     First    Amendment       rights    by   terminating    her

employment is indisputably an issue that is properly before us,

and we may analyze this issue under Pickering or under any other

relevant legal theory raised in the district court.

     Moreover, the majority opinion’s reluctance to perform the

Pickering    balancing     test    due    to   a   lack     of   record     evidence

supporting    Gault’s     position       is    unwarranted.         The     majority

opinion    suggests    that,     with    proper    notice    that    the    district

court or this Court might perform the Pickering balancing test,

Gault might have deposed other individuals or otherwise sought

greater factual support for the proposition that he terminated

Lawson to ensure the continued effective and efficient provision

of governmental services.           Yet given that the majority opinion

apparently determined sub silentio that the factual record was

sufficiently developed to assess one of Gault’s legal defenses—

namely, his defense under Elrod–Branti—it is perplexing that the

majority opinion deems the same factual record an insufficient

basis to assess another of Gault’s legal defenses to the same

First Amendment claim—namely, his defense under Pickering.

     Indeed, the two legal doctrines require consideration of

the same type of factual evidence.                 The Elrod–Branti exception

applies where “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.

                                         49
at 518 (emphasis added); see also id. at 519–20 (noting that the

doctrine is intended to “promote[] the effective performance of

[the public] office”).                 Likewise, the Pickering balancing test

assesses whether “the interest in speaking upon the matter of

public concern outweighed the government’s interest in providing

effective and efficient services to the public.”                         Gilchrist, 749

F.3d at 308 (quoting McVey, 157 F.3d at 277–78).                              Accordingly,

the factual evidence that a public employer must put forth under

Elrod–Branti—evidence               demonstrating         that         the      employee’s

termination       based     on    political        affiliation       would    further    the

effective      performance        of    the    public    office—includes         the     same

evidence that the employer must present under Pickering—evidence

that     the    employee’s        termination         based     on     her    speech     was

appropriate       to     ensure        the    office’s    continued          provision     of

effective and efficient services to the public.                              As mentioned

above,     when     he      was     before      the      district       court,     Gault’s

experienced counsel fully grasped this truism.                         Thus, if, as the

majority       opinion      takes      for    granted,    the    factual        record    is

sufficiently developed to consider Lawson’s claims under Elrod–

Branti,    there       is   no    reason      to    suppose     that    the     record    is

insufficiently developed to do the same under Pickering.

                                              2.

       A thorough examination of the relevant interests in this

case under the Pickering balancing test reveals that the robust

                                              50
interest      in    Lawson’s      core   political      speech    upon    a   matter    of

public concern significantly outweighed Gault’s unwarranted and

speculative         belief      that   Lawson’s      speech   would      undermine     his

interest in assuring that the Office of the Clerk would continue

to provide effective and efficient services to the public.

        I note first that we must consider Lawson’s speech in the

context of her political campaign for Clerk of Court against

Gault, the incumbent Clerk. 5                  See Gilchrist, 749 F.3d at 309;

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317

(4th Cir. 2006) (“For Pickering balancing, ‘we must take into

account the context of the employee’s speech’ and ‘the extent to

which        it     disrupts      the     operation       and     mission        of    the

institution.’” (quoting McVey, 157 F.3d at 277)).                         In doing so,

let’s be clear about the particular speech and context at issue.

This    is    not    a   case    in    which    an   employee    lashed    out    at   her

supervisor or coworker, impugning a colleague’s character in an

unnecessarily public fashion.                  To the contrary, the comments in

this case consist of Lawson’s statements during her political


       5
       I strongly believe that, in its lengthy but ultimately
inconclusive discussion of the Pickering balancing test, the
majority opinion unwittingly compounds its erroneous analysis of
Lawson’s claim by viewing Lawson’s speech without regard for its
proper context: that of pure political speech voiced in the
course of a partisan campaign for elective office. See Brickey,
slip op. at 15 (Diaz, J.) (“Brickey spoke as a political
candidate in a public forum.    In general terms, speaking as a
political candidate weighs in favor of speech.”).


                                               51
campaign for public office in which she questioned “where the

funds were coming from to pay Ms. Miller.”                      J.A. 186.       Gault

testified that, “around the campaign trail[,] . . . people would

say [Lawson] is saying June Miller should not be in the clerk of

court’s    office;      June    Miller    is   running    the   clerk   of     court’s

office; . . . why does Freddie Gault got [sic] June Miller in

the clerk of court’s office[?]”                 J.A. 88–90.          Although Gault

admitted that he did not hear Lawson make these comments or, in

fact,     say     anything      about     Miller    throughout        the     election

campaign, he maintained that his receipt of reports about these

statements prompted him to fire Lawson.

      Far from “publicly associat[ing] a colleague, by name, with

accounting irregularities,” ante at 30, in statements for which

“there    could    be   no     benign    reason,”   id.    at   30    n.10,    as   the

majority opinion asserts, Lawson’s comments, at worst, expressed

skepticism regarding the strength of Gault’s management of the

Clerk’s Office and questioned Gault’s reliance on the aid of a

former Clerk. 6      Lawson’s comments concerning the source of funds

for     Miller’s     salary      also     showcased       for   voters        Lawson’s


      6Gault himself apparently interpreted Lawson’s comments in
this manner, rather than as an affront to Miller: “[T]he rumor
is going around that [Miller is] running the office, you know.
And I don’t mean this disrespectful either, but I never even ask
her advice . . . .    Ms. Miller is not running my office for
me. . . .     [She is j]ust doing [bank] reconciliations.”
J.A. 100.


                                          52
“heightened sense of alertness” as to the management of public

funds, which she had acquired from her experience in the Clerk’s

Office during the embezzlement scandal.                   J.A. 187.         In other

words,   her   statements      highlighted     the     need     for    transparency

regarding the distribution of public funds.                      Accordingly, her

speech was precisely the kind of core political speech that one

would expect a candidate to make as part of her campaign for

elective   office.      Compare    ante   at     30   &   n.10    (characterizing

Lawson’s comments during a political campaign in which she asked

“where   the   funds    were    coming    from    to      pay    Ms.    Miller”    as

statements “associat[ing] Miller with suspicious accounting” for

“no benign reason” and suggesting that Gault did not violate the

First Amendment by firing Lawson for her speech), with Brickey,

slip op. at 13 n.3 (recognizing that a police officer’s comments

during a political campaign, including “[s]tatements that the

department ‘needs to be more professional,’ ‘needs to be more

[aggressive]    on     investigations,’        [and]      ought        to   hire   an

investigator,” “offer modest criticism of the department and its

chief,” “do not raise a reasonable apprehension of disruption,”

and are “entitled to First Amendment protection” as a matter of

clearly established law (first alteration in original) (citation

omitted)).

     Indeed, all parties agree that Lawson “‘was speaking as a

citizen upon a matter of public concern’ rather than ‘as an

                                     53
employee about a matter of personal interest,’” Gilchrist, 749

F.3d   at     308    (quoting        McVey,   157    F.3d     at    277–78),      and    the

majority      opinion       appropriately          notes     that    this   element       of

Lawson’s First Amendment claim is not at issue, ante at 24 n.5.

                                              3.

       Bearing in mind the particular speech in question and its

specific context, I examine the interest in Lawson’s speech.                             As

stated      above,      it     is      undisputed          that     Lawson’s      comments

constituted     speech        upon    a    matter   of     public    concern,     as    they

“involve[d] an issue of social, political, or other interest to

the community.”         Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.

2000) (en banc).            More to the point, Lawson had a particularly

strong interest in speaking on this matter.                          She certainly had

an interest in running for Clerk of Court, as she had worked in

the Union County Clerk’s Office for twenty-three years and had

previously sought the position.                     She also had an interest in

demonstrating to her constituents, as part of her campaign, that

she was mindful of the need for proper management of public

funds and that she was especially vigilant of the use of Clerk’s

Office      funds,     given     her       experience       working     there.          Core

political speech like Lawson’s garners “the highest level of

protection”         under      the        First     Amendment       because       of     the

particularly strong interests at stake.                      Bland, 730 F.3d at 387;

see    also    Meyer     v.     Grant,      486     U.S.     414,    422,   425    (1988)

                                              54
(recognizing       constitutional            protection         of    “core       political

speech” as being “at its zenith” (citation omitted)).

       Moreover,      the      public    itself      had    a    strong      interest      in

Lawson’s speech.         See City of San Diego v. Roe, 543 U.S. 77, 82

(2004)   (per    curiam)        (“The    interest     at    stake     is     as   much    the

public’s interest in receiving informed opinion as it is the

employee’s      own   right      to     disseminate        it.”);    McVey,       157    F.3d

at 279 (Murnaghan, J., concurring) (“Both the Supreme Court and

the Fourth Circuit have explained that the public interest in

the employee’s speech must be considered when weighing his right

to     speak     against        the     government-employer’s               interest       in

controlling       the       workplace.”).             The       Supreme       Court       has

“acknowledged the importance of promoting the public’s interest

in   receiving     the      well-informed         views    of   government        employees

engaging in civic discussion.”                 Garcetti, 547 U.S. at 419; see

also   Gilchrist,        749    F.3d    at   308    (“Protection        of    the    public

interest in having a debate on matters of public importance is

at the heart of the First Amendment.” (quoting McVey, 157 F.3d

at 277)).

       In this case, the public had a considerable interest in

ensuring       that     the      Deputy      Clerk—someone           with     significant

experience working in the Clerk’s Office—would not be deterred

from running for Clerk of Court by the prospect of losing her

current employment.            Moreover, members of the public considering

                                             55
who to elect as the next Clerk had a substantial interest in

hearing    the     comments       of    one        candidate,       the    Deputy    Clerk,

concerning the management of Clerk’s Office finances under the

current Clerk, who was also seeking the position.                              Indeed, the

public’s interest in Lawson’s speech was especially strong, as

her speech concerned the management and expenditure of public

funds—the same funds that Gault’s predecessor had pled guilty to

embezzling while in office.

                                              4.

      Because     both    Lawson       and    the     public     had      an   interest    in

Lawson’s       speech    upon   this     matter       of   public         concern,   Lawson

“could not be fired for making the statements [s]he made unless

h[er]     right    to     speak    was       outweighed        by      h[er]    employer’s

legitimate interests.”            Gilchrist, 749 F.3d at 309.                   Gault bore

a particularly heavy burden in identifying legitimate interests

in   terminating        Lawson,    for       “[a]    stronger       showing     of   public

interest in the speech requires a concomitantly stronger showing

of government-employer interest to overcome it.”                                McVey, 157

F.3d at 279 (Murnaghan, J. concurring) (citing cases); accord

Connick v. Myers, 461 U.S. 138, 152 (1983); Durham, 737 F.3d

at 302 (“[I]t is not enough that there is some disruption; the

amount    of    disruption      has    to     outweigh     the      importance       of   the

speech and its concern to the public.”); see also Dougherty v.

Sch. Dist. of Phila., 772 F.3d 979, 991 (3d Cir. 2014) (“The

                                              56
more tightly the First Amendment embraces the employee’s speech,

the more vigorous a showing of disruption must be made by the

employer.”).

     Nevertheless,     in     an    effort    to   meet    this      burden,     Gault

merely suggested that he lawfully terminated Lawson’s employment

in response to her political speech because “the potential for

disruption     is   self-evident.”            Appellees’       Br.     32   (quoting

Maciariello, 973 F.2d at 300).              Gault asserted that this “‘self-

evident’     ‘potential     for    disruption’     suffices       to    strike    any

required balancing of interests in favor of Gault.”                         Id.    My

friends in the majority suggest that Gault’s “showing” in this

respect     could   warrant       summary    judgment     in    his     favor.      I

disagree.

                                        5.

     The factual record, which was fully developed in this case

(in accordance with the district court’s scheduling order, whose

deadlines were in fact extended) prior to the motion for summary

judgment, 7 indicates that absolutely no adverse effect on the


     7 In declining to render judgment for Lawson, ostensibly
because Lawson did not affirmatively seek summary judgment, the
majority opinion remands to allow for further development of the
factual record even though Gault has not urged this Court to do
so, indicated that the record is currently underdeveloped, or
explained how he might seek to further develop the record. The
majority opinion thus purports to give effect to Lawson’s
intent, emphasizing repeatedly that Lawson has not sought
summary judgment, while ignoring Gault’s express intent to
(Continued)
                                        57
workplace     was     “reasonably      to      be     apprehended”      had        Gault

maintained Lawson’s employment and declined to retaliate against

her for her political speech.           Lawson’s 2012 campaign for office

was remarkably tame and collegial.                  Of course, as noted above,

Lawson did make statements as part of her bid for election in

which   she   asked     “where   the    funds        were   coming    from     to   pay

Ms. Miller,”     J.A.     186,   and        questioned       Gault’s        managerial

prerogatives.       Lawson did not say anything, however, regarding

Miller’s    character    or   fitness    as     an    employee   of    the    Clerk’s

Office.     Likewise, Lawson did not speak negatively about Gault

throughout the campaign or thereafter, aside from making the

relatively     benign    comments      described        above.        Instead,       her

political     advertisements     and     the    message      that     she    and    her

supporters sought to convey throughout her campaign focused on

her years of experience in the Clerk’s Office.

     Moreover,      Lawson    remained      cordial     throughout      the    entire

election period.        When Gault instructed Lawson not to involve



resolve the case by summary judgment, without any further
factual discovery.     As the majority opinion identifies no
genuine issue of material fact, it is unclear why it remands for
further development of the factual record.

     To be sure, in light of the majority opinion’s disposition
of this case, a decision by the district court to allow further
discovery would likely fall within the district court’s
discretion.   I am unconvinced, however, that remand for this
purpose is necessary, as there is no genuine issue of material
fact and clearly established law plainly favors Lawson.


                                        58
anyone in the Clerk’s Office in her campaign, she obliged; she

did not campaign at the office or enlist any of the Clerk’s

Office employees to help with her campaign.                    Gault reciprocated

Lawson’s     collegiality,       and     he    attended     the   visitation         for

Lawson’s     husband,      who   passed       away   a   few    weeks    before      the

election and the night before the two candidates were to engage

in   their   only     debate.       Gault      later     indicated      that    he   had

considered Lawson’s husband “a close friend,” and he explained

that he had attended the visitation “out of respect for him and

her.”     J.A. 177.       In light of her husband’s passing, Lawson did

not attend the debate.           When Gault ultimately won the election,

Lawson called to congratulate him.

      Further,      the    record   is    unmistakably         clear    that,     after

Lawson had previously applied for appointment as Clerk of Court

in 2009 and after the governor appointed Gault to the position

instead, the Clerk’s Office continued to operate effectively and

efficiently while Lawson continued to work there. 8                            In fact,


      8The majority opinion asserts that any reliance on the
actual   record   evidence   of  the   respectful,    professional
relationship between Lawson and Gault prior to the 2012 election
campaign and throughout the campaign somehow “has no bearing on
how Lawson’s comments would have affected Miller, or the Office
as a whole.” Ante at 31.        This reasoning exemplifies the
majority opinion’s disdain for actual record evidence of no
likelihood   of  a   workplace  disruption,   coupled   with   its
celebration of the absence of any actual record evidence of a
likelihood of a workplace disruption.

(Continued)
                                          59
after his appointment, Gault promoted Lawson from the position

of senior employee in the Family Court/Child Support Division of

the   Clerk’s     Office    to     Deputy    Family    Court   Clerk.     Lawson

continued to serve as Deputy Clerk until Gault placed her on

unpaid    leave   when     she    announced   her     candidacy   for   Clerk   of

Court.

      Finally, the record contains no testimony from anyone other

than Lawson or Gault.            Not one member of the Clerk’s Office—not

even Miller—indicated that she would have been unable to work

effectively and efficiently with Lawson as a result of Lawson’s

speech.     Only Gault appeared to react negatively to Lawson’s




     Manifestly, it is the majority opinion that has introduced
into the record the notion that Lawson “publicly associated a
colleague, by name, with accounting regularities,” id. at 30,
and made “negative public comments about an identified co-
worker,” id. at 29, for “no benign reason,” id. at 30 n.10
(emphasis added), in characterizing, quite unfairly, Lawson’s
political speech.   One can search the record of this case for
days and will not uncover any such characterization by Gault,
Miller, any of the employees of the Clerk’s Office, or the
district court.     Furthermore, as this dissent pointed out
previously in decrying the majority opinion’s acontextual
approach in this case (in contrast to the approach one sees in
Brickey), supra note 5, the majority opinion turns the First
Amendment political speech doctrine on its head by joining with
Gault to punish Lawson for speaking publicly.    Lawson was not
running for “Most Likeable Employee of the Clerk’s Office/2012”;
she was running in a partisan election to become the Clerk of
Court.   It is unfathomable to suggest that her mere mention of
Miller’s name in connection with her benign comments about the
operational efficiency of the office based on her twenty-three-
year career in that very office should only be whispered in
private conversations with voters.


                                        60
comments. 9     The factual record here stands in sharp contrast to

the   factual    record   bearing         on    the     likely   effects    of     the

statements       disseminated        by        Brickey     in     the      newspaper

questionnaire.      See Brickey, slip op. at 15–16 (observing that

“an   independent    investigation         of    Brickey’s       statements      [had]

concluded that they ‘were harmful to the public trust of [the

police chief] as well as his integrity’” (citation omitted)).

      In   short,   nothing     in   the       record    suggests    that     it   was

reasonable to anticipate that Lawson’s speech would have caused

      9Gault testified that, after having terminated Lawson, he
explained that decision to some members of the Clerk’s Office
staff.   He indicated that three of the staff members responded
that they had “no [hard] feelings” about his decision to fire
Lawson, while one person told him that, in hindsight, she was
“kind of glad [Gault] did this,” given the potential challenge
of working with a Deputy Clerk who had run for election against
the Clerk. J.A. 93. The staff members apparently said nothing
of the likely effect of Lawson’s speech, as opposed to the
effect of Lawson’s seeking election against Gault, and their
comments did not provide a reasonable basis upon which Gault
could   have    anticipated    an    interruption   to   workplace
effectiveness or efficiency, as this discussion occurred after
he had terminated Lawson.          I mention Gault’s testimony
concerning post hoc comments by Clerk’s Office employees merely
to emphasize that the only putative evidence in the record that
Gault could have attempted to put forth to demonstrate the
reasonableness   of   his   decision    to  terminate  Lawson   is
inapposite. Meanwhile, the record is devoid of any evidence of
circumstances prior to Lawson’s termination or at the time of
Lawson’s termination that would have led a reasonable person to
conclude that the effectiveness and efficiency of the Union
County Clerk’s Office would suffer as a result of Lawson’s
campaign speech. And further development of the factual record
on remand, approximately four years after Lawson’s termination,
would likely uncover only the same kind of post hoc evidence
that has no bearing on the reasonableness of Gault’s perception
of a likely disruption at the time he terminated Lawson.


                                          61
even the slightest hiccup in the Clerk’s Office’s effectiveness

or efficiency, let alone a disruption sufficient to overcome the

highest    constitutional         protection            for    Lawson’s         core   political

speech.         To    the    contrary,        the       record       depicts      longstanding

collegiality         and     professionalism            among       all    involved.           The

majority opinion’s indefensible decision to hypothesize future

workplace disruption on the record before us is nothing if not

head-scratchingly           inexplicable.             In      any    event,      even    if,    on

remand,       Gault’s      experienced       counsel          should      ask    the    district

court    to    reopen       discovery       as    the    majority         opinion      curiously

contemplates, the district court would act quite reasonably to

demand to know why any employee of the Clerk’s Office (circa

2012) who was not deposed in support of the Elrod-Branti defense

should now be deposed in support of Gault’s ostensible Pickering

defense.

                                                 C.

     Despite         the    absence    of    any      actual        record      evidence   of    a

potential disruption in the Clerk’s Office, the majority opinion

takes    the    unprecedented          approach         of    refusing       to    announce      a

decision on Pickering balancing while nonetheless discussing at

length    its    inclination          to    credit       Gault’s       baldly      unsupported

statement that he terminated Lawson because he “couldn’t very

well bring [her] back in and expect her to sit beside June

Miller.”       J.A. 92.       The majority’s reliance on this assertion in

                                                 62
particular is troubling because Lawson and Miller—and, indeed,

Lawson       and   Gault—worked        in        separate   office    buildings. 10

Accordingly, Lawson’s return to work would not have required

that she and Miller sit side by side, even if the record had

provided any indication that the two employees would not have

been        able   to        work   together        effectively      under      those

circumstances.          In    the   same    vein,   according   to   the     majority

opinion, “the record reflects that Gault expressed concern about

       10
        Gault, Miller, and five other Clerk’s Office employees
worked in the Union County courthouse, while Lawson and three
other employees worked in a separate building called the
“annex.”    See J.A. 69.    Further discrediting the majority
opinion’s reliance on its manufactured propinquity as between
Lawson and Miller, the latter was a part-time employee at all
pertinent times. Indeed, as Gault testified,

       [Miller would] work normally two days a week.    Some
       days it may go three or four weeks where she -- three
       weeks where she doesn’t work, and she just comes back
       in at the first of the month where our checks are
       coming in and the reports, and she reviews reports
       that the general sessions and that child support is
       doing [sic].

J.A. 98.

     The notion that Lawson’s speech or her continued employment
would have disrupted the work of the Clerk’s Office in any
legally cognizable manner is fantastical on this record. Unlike
the majority opinion, the district court recognized that it was
Gault’s view of Lawson as his “political enem[y]” that arguably
justified her termination. See Lawson v. Gault, 63 F. Supp. 3d
584, 590 n.4 (D.S.C. 2014) (quoting Jenkins v. Medford, 119 F.3d
1156, 1163 n.47 (4th Cir. 1997) (en banc)).     For the reasons
stated infra pp. 75–85, this dissent (together with the majority
opinion) disagrees with that alternative justification for
denying Lawson protection for the exercise of her First
Amendment rights.


                                            63
[how   Lawson’s     comments     could    affect   her    ability     to   maintain

discipline in her division], and noted that he expected that

other co-workers would have difficulty working with Lawson going

forward.”      Ante at 29.       Yet no record evidence demonstrates that

Gault’s subjective concerns were objectively reasonable.                       Cf.

Durham, 737 F.3d at 302 (“[The employer] paid lip service to

ostensible      damage      to   office    morale,      relationships       between

colleagues, and the function of the office generally, but he was

unable to articulate any way in which the office would have been

different      or   was    actually   different    due    to   [the   employee’s]

statements.”).

       The majority also speculates that Lawson’s employment in a

“supervisory position” and “public-facing role” enabled her to

have a greater impact on office morale through her speech.                      See

ante at 29–30.         Yet once again, this suggestion has no basis in

the record—and Gault, who bears the burden at this juncture, did

not    raise    this      argument    himself.       Likewise,      although   the

majority highlights the public nature of Lawson’s speech, that

it occurred during her campaign for public office is simply not

evidence    that     her    speech    would    damage    the   Clerk’s     Office’s

continued productivity.

       Further, in presenting one of the primary bases for its

apparent inclination to resolve the Pickering balancing test in

Gault’s favor, the majority opinion emphasizes that the Clerk’s

                                          64
Office   comprised        only      ten   full-time         employees,    and    it     thus

suggests that “[t]he potential for Lawson’s public comments to

sow discord in his office was a serious concern.”                             Id. at 29

(citing Appellees’ Br. 31).                The notion that, as Gault asserts,

the potential disruption to the Clerk’s Office’s operation could

be “self-evident” is fundamentally at odds with the legal rule

firmly entrenched in Supreme Court and Fourth Circuit precedent

that a public employer must provide actual record evidence to

demonstrate that a disruption is “reasonably to be apprehended,”

Gilchrist,    749    F.3d        at   309      (quoting      Maciariello,       973    F.2d

at 300).     See, e.g., Rankin, 483 U.S. at 388–89; Gilchrist, 749

F.3d at 310, 312; Durham, 737 F.3d at 301; Bland, 730 F.3d

at 387; Robinson, 160 F.3d at 189.                        Yet the majority opinion

essentially suggests that Lawson’s employment in a small office

is   sufficient     to    establish        that     her     speech    would   inherently

cause disharmony in the workplace—and not just any disharmony,

but disharmony sufficient to outweigh the robust countervailing

interest in Lawson’s core political speech—despite all actual

record   evidence        to   the     contrary.        With     this   reasoning,        the

majority effectively invokes a new, per se presumption that a

public   employee    who      works       in   a    small    office    and    who     speaks

critically about a matter involving the workplace, no matter the

circumstances, is not protected by the First Amendment “right to

be free from retaliation by a public official for the exercise

                                               65
of    [one’s       freedom       of   speech].”       Gilchrist,         749    F.3d     at    308

(quoting         Suarez      Corp.     Indus.,      202    F.3d     at   685).          Such    an

acontextual             analysis      flies    in     the      teeth      of      controlling

precedent.

       Perhaps          most     troubling,   the     majority       opinion’s          analysis

rests       on    an    apparent      disapproval     of     the    content      of     Lawson’s

speech without regard for its context, as the majority suggests

that, at least in part because Lawson “publicly associated a

colleague, by name, with accounting irregularities,” ante at 30,

“Lawson’s comments might have been expected to impair harmony

among co-workers and damage close personal relationships,” id.

at 29.        In fact, none of the parties or individuals involved in

this        case       suggested      that    any     “accounting          irregularities”

existed; nor did anyone contend that Lawson’s speech might have

implied          that    such     irregularities          existed. 11          Lawson     merely

questioned “where the funds were coming from to pay Ms. Miller,”

J.A. 186—or how Clerk’s Office funds were being distributed—in

the    context          of   a   campaign     for    Clerk     of    Court       against       the

incumbent Clerk.               Contrary to the image of Lawson painted by the

majority opinion, Lawson actually expressed warm personal regard


       11
       It is useful to recall that, in assessing Gault’s motion
for summary judgment, the majority opinion acknowledges that it
must construe all facts and draw all reasonable inferences in
the light most favorable to Lawson.     See T-Mobile Ne. LLC v.
City Council of Newport News, 674 F.3d 380, 385 (4th Cir. 2012).


                                               66
for Miller during the campaign for the positive role Miller had

played in her development and career. 12               See J.A. 169.

     In any event, even if Lawson’s comments could have had a

negative      effect      on     workplace           operation        under     certain

circumstances,     there        is     simply    no        evidence    that     it    was

reasonable to anticipate such an effect in the context of this

case.      Cf.   Robinson,      160    F.3d     at    189–90    (holding       that   the

district court erred in resolving the Pickering balancing test

in   the     employer’s        favor     where       the     employees        “allege[d]

corruption in the use of public funds” but the employer “failed

to present any evidence that . . . [the employees’] speech . . .




     12    Lawson stated in an autobiographical “open letter” to
voters,

     My involvement with Union County began in 1983 working
     part - time for former Clerk of Court Pearl S. Kirby.
     This position was approved for six months and during
     this time I worked with Uniform Commercial Codes,
     Judgements [sic] and Child Support Services.    Later,
     in 1989, I became employed by the Union County
     Sheriff’s Department as a dispatcher and worked 12
     hour shifts.   I remained there for three years until
     former Clerk of Court June H. Miller hired me to work
     in the Family Court and Child Support Division of the
     clerk’s office.    I was so thankful to her for this
     opportunity because at the time, I had a young son and
     needed a 9 to 5 job.

J.A. 169 (emphasis added).    The majority opinion is willing to
blink at this affirmative record evidence, as it blinks at other
evidence discussed herein, of no likelihood of a substantial
disruption had Lawson’s employment continued.


                                          67
interfered        with     the     effective          functioning        of    the     [office]”

(emphasis added)).

                                                 D.

       While      the    majority       opinion        attempts     to    distinguish         this

case    from      Gilchrist        by    identifying           differences       between      the

comments that ADA Smith made about the defensive-driving program

and those Lawson made about the source of Miller’s salary, the

two cases are identical in at least one critically important

respect: in both cases, “[t]here simply was no evidence that

[the   employee’s]         public       statements          would   cause      problems       with

harmony      or     discipline          in    the      . . .    office        such    that    the

efficiency        of    the     office       would     be   expected      to    be     adversely

affected.”        Gilchrist, 749 F.3d at 310 (emphasis added).                                This

Court in Gilchrist repeated this determination again and again:

“Nor was there any evidence that Gilchrist had any reason to

believe      that       Smith’s     interview          would    negatively           affect   the

efficiency or effectiveness of the DA’s office”—even though the

content      of     the        speech     was       “critical       of    a    program        that

substantially           reduces     the        DA’s      office’s        caseload.”           Id.

(emphases added); see also id. at 312 (“Gilchrist certainly was

correct to concede that there were no relevant facts upon which

he   could     base       an    argument        that    Smith’s      interest         . . .   was

outweighed        by      the     government’s           interest . . . .”             (emphasis

added)).

                                                 68
       Moreover, my friends in the majority rely too heavily on

the case from which Gault gleaned the phrase “self-evident.”                           In

Maciariello, two police officers were demoted after performing

an unofficial internal investigation of their captain.                       973 F.2d

at 296–97.      This Court weighed the limited interest of the two

investigating      officers     in   their      purported    speech    against        the

interest of the police department in providing effective and

efficient public services.            See id. at 299–300.            As part of its

careful balancing, the Court recognized that a police department

is “paramilitary” and has a greater interest than most employers

in    minimizing      “dissension     in    [its]     ranks”   as     well    as      “an

undeniable      interest       in     discouraging          unofficial       internal

investigations” that could be “very disrupting.”                       Id. at 300;

accord Brickey, slip op. at 13 (“It was clearly established in

2012    that    police       officials     are      entitled    to     impose        more

restrictions on speech than other public employers because a

police force is paramilitary—discipline is demanded, and freedom

must    be    correspondingly        denied.”     (internal     quotation          marks

omitted) (quoting Maciariello, 973 F.2d at 300)).                        The Court

also acknowledged that “we do not require the public employer to

prove that the employee’s speech actually disrupted efficiency,

but    only    that     an    adverse      effect     was    ‘reasonably        to     be

apprehended.’”         Maciariello, 973 F.2d at 300 (emphasis added)

(quoting Jurgensen, 745 F.2d at 879).                   Accordingly, the Court

                                           69
indicated that, “[w]hether there was any concrete evidence that

morale was disrupted or not, the potential for disruption is

self-evident.”       Id.

     To the extent that Maciariello might suggest that a public

employer need not present actual record evidence from which one

could   reasonably         expect      an    obstruction         of     the    office’s

operation, two important points bear mentioning.                             First, the

Court   in   Maciariello        discussed        several     bases    upon    which   one

could reasonably anticipate that the specific type of “speech”

at issue—performing an unauthorized investigation of the police

officers’    captain—would        prove      highly     disruptive      to     a   police

department in particular, a workplace in which “discipline is

demanded.”     Id.    That is, even though the Court did not strictly

require the public employer to present actual record evidence of

a   likely    disruption,         it    nevertheless         carefully        considered

whether “an adverse effect was ‘reasonably to be apprehended’”

under the specific circumstances of that case.                       See id. (quoting

Jurgensen, 745 F.2d at 879).                 The majority in this case, by

contrast, identifies no basis in the record upon which one could

reasonably    expect       that   a    Clerk’s     Office     employee’s       political

speech about the source of funds for another employee, made in

the context of a campaign for political office, would hinder the

operation of the Clerk’s Office.                   Cf. Brickey, slip op. at 21

(emphasizing    that       “a   core   abuse      of   the    mission    of    a   police

                                            70
department is reasonably distinguishable from vague allegations

of mismanagement or even misuse of funds”).

       Second,       and       perhaps     of    greater        salience,       the      Court’s

balancing      of      competing          interests        in     Maciariello         and     its

suggestion     that        a    disruption      to   the    workplace        may    be   “self-

evident” were dicta.              The Court in Maciariello first determined

that   the    two      officers’      statements       of       their    suspicions         about

their captain constituted “speech,” but the Court concluded that

this speech was not a “but for” cause of their demotions.                                     973

F.2d    at    299.         Next,     the     Court    concluded          that      the    larger

investigation itself may have been a “but for” cause of the

demotions,       but       the    investigation        was        not    “speech.”           Id.

Accordingly,          summary        judgment         for        the      defendants         was

appropriate.         Only after reaching this holding did the Court

offer an alternative basis for its decision, explaining that

“[e]ven if these defects were repaired, plaintiffs would lose if

their interest as a citizen in the ‘speech’ is outweighed by the

government’s interest as an employer.”                          Id.     At this point, the

Court applied the Pickering balancing test.                              Accordingly, the

Court’s analysis under Pickering was merely dicta and did not

constitute binding law.                   See Alexander v. Sandoval, 532 U.S.

275,    282    (2001)          (“[T]his    Court     is     bound       by   holdings,       not

language.”); United States v. Pasquantino, 336 F.3d 321, 329

(4th Cir. 2003) (en banc) (“The first significant problem is

                                                71
that the statements [the defendants] rely upon . . . are pure

and simple dicta, and, therefore, cannot serve as a source of

binding authority in American jurisprudence.”).

                        *      *          *      *       *

      To conclude on Pickering balancing, the majority opinion

forges an unprecedented path in refusing to consider the legal

issue outright, even though the matter is properly before us and

the   majority   identifies    no    genuine          issue     of     material   fact

preluding   summary    judgment.                Yet    the      majority      opinion

nonetheless contains a lengthy hypothetical Pickering analysis,

during which it constructs its own palette, rather than relying

on the record coming to us from the district court, on which to

paint its narrative suggesting a likely denial of Lawson’s right

to the enjoyment of her First Amendment freedoms.                        The reasons

offered by the majority opinion for painting what it paints are

barren of actual evidentiary support in the record.                          Further,

the   majority   opinion    eschews           affirmative       evidence     in   the

existing record of a strong likelihood of the Clerk’s Office’s

continued provision of effective and efficient public services

despite   Lawson’s   speech.        The       majority       opinion    asserts   that

Lawson’s political speech:

      “could affect Lawson’s ability to maintain discipline
      in her division,” ante at 29, but there is no actual
      record evidence to support that speculation; and that



                                      72
     “Gault expressed concern about [Lawson’s ability to
     maintain discipline], and noted that he expected that
     other co-workers would have difficulty working with
     Lawson going forward,” id., but there is no actual
     record evidence to support that speculation; and that

     “Lawson’s comments might have been expected to impair
     harmony among co-workers and damage close personal
     relationships,” id., but there is no actual record
     evidence to support that speculation; and that

     “Given Lawson’s public-facing role, . . . Lawson’s
     comments could have undermined the public’s confidence
     in the Office’s integrity and thereby compromised the
     Office’s performance,” id. at 29–30, but there is no
     actual record evidence to support that speculation.

     In    light      of    the    clearly     established         law     set   forth     in

binding precedent regarding the need for actual record evidence

demonstrating that it is reasonable to anticipate an adverse

impact     on      workplace       effectiveness       and        efficiency,        it    is

confounding        that    Gault    argues,     and    the    majority        appears      to

credit, that such a disruption could be “self-evident”—and that

this assertion by a public employer alone could be sufficient to

outweigh     the     substantial      interest    in    Lawson’s         core    political

speech.

     One would have thought, before today (and even as of today,

in   light      of   the     excellent       opinion    in        Brickey),      that     the

reasonableness            requirement     inherent           in      the      “reasonable

apprehension of disruption” metric draws its meaning from actual

record evidence.            After today in the Fourth Circuit, if the

majority        opinion’s         dicta   is     given        full         effect,        such


                                          73
“reasonableness” determinations will more often be a function of

whatever can be conjured in the fertile imaginations of federal

judges.      This distortion of settled First Amendment doctrine is

unwarranted,          unwise,   and        unsupportable.            I    regret      this

development.

                                            II.

       Having determined that the Pickering balancing test weighed

in Lawson’s favor, I next consider whether her termination may

nevertheless have been lawful under the Elrod–Branti exception.

While    the       district   court    granted      summary    judgment        for   Gault

based on its determination that this exception applied, de novo

review of this matter is appropriate.                  See T-Mobile, 674 F.3d at

384.     Like the majority opinion, I would hold that the Elrod–

Branti exception is inapplicable to this case, and, as such,

summary judgment for Gault was improper on this basis as well.

                                            A.

       In   Elrod     v.   Burns,     427   U.S.    347   (1976),        and   Branti   v.

Finkel, 445 U.S. 507 (1980), the Supreme Court established a

narrow      exception      to   the     general      rule     that       terminating    a

government official on the basis of political affiliation is

presumptively unconstitutional.                   See id. at 515–16; Bland, 730

F.3d at 374.          Under this exception, dismissal on the basis of

political affiliation may be lawful where the public employee

occupies       a    policymaking      or    confidential      position         for   which

                                            74
effective job performance requires allegiance to a particular

party.     See    Branti,    445    U.S.       at   518.     Thus,    an   individual

employed in such a position who “speaks out in a manner that

interferes with or undermines the operation of the agency, its

mission,   or    its   public   confidence,          enjoys     substantially      less

First Amendment protection than does a lower level employee.”

Bland, 730 F.3d at 374 (quoting McVey, 157 F.3d at 278).

     The   Supreme     Court       has   made       clear,    however,     that    this

exception is narrow, see id., and it has emphasized that “party

affiliation is not necessarily relevant to every policymaking or

confidential position,” Branti, 445 U.S. at 518.                       For example,

“[t]he coach of a state university’s football team formulates

policy, but no one could seriously claim that Republicans make

better coaches than Democrats, or vice versa, no matter which

party is in control of the state government.”                        Id.    Likewise,

“although an assistant is bound to obtain access to confidential

information        arising         out      of        various        attorney–client

relationships,      that    information        has   no    bearing    whatsoever     on

partisan political concerns.”              Id. at 519.        Thus, “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.”           Id. at 518.

                                          75
       In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), this

Court developed a two-part test to determine whether the Elrod–

Branti exception applies.              Bland, 730 F.3d at 375 (citing Stott,

916 F.2d at 134).          First, we consider whether “the position at

issue, no matter how policy-influencing or confidential it may

be,    relates       to   ‘partisan         political        interests    . . .     [or]

concerns.’”         Stott, 916 F.2d at 141 (alterations in original)

(quoting Branti, 445 U.S. at 519).                    In other words, we examine

whether    “the      position    involve[s]         government    decisionmaking     on

issues where there is room for political disagreement on goals

or    their    implementation.”             Id.       This    inquiry    requires    an

exploration of the public employee’s position “at a very high

level of generality.”           Bland, 730 F.3d at 375 (quoting Fields v.

Prater, 566 F.3d 381, 386 (4th Cir. 2009)).

       If the first prong is satisfied, we proceed to the second

step, where we “examine the particular responsibilities of the

position      to    determine       whether    it    resembles    a   policymaker,     a

privy to confidential information, a communicator, or some other

office holder whose function is such that party affiliation [or

political      allegiance]      is    an    equally    appropriate       requirement.”

Id. (alteration in original) (quoting Stott, 916 F.2d at 142).

This    step       “requires    a    much     more    concrete    analysis    of    the

specific      position    at    issue.”        Id.    (quoting    Fields,    566    F.3d

at 386).       Even at the second step, however, we examine only “the

                                              76
job    description    for    the   position    in   question,”        rather   than

considering the “functions performed by a particular occupant of

that office.”        Id. (quoting Stott, 916 F.2d at 142).                  We thus

must   determine     whether   “political      loyalty    was    an   appropriate

requirement     for    the     effective      performance       of    the    public

employment of the [plaintiff] before us in light of the duties

of [her] particular position[].”            Id. at 377.

                                       B.

       Gault argues that Lawson’s position as Union County Family

Court Deputy Clerk fits under the Elrod–Branti exception.                        He

has failed, however, to make this showing, and, based on the

record evidence, I would hold that the Elrod–Branti exception is

inapposite to this case.

                                       1.

       Under the first prong of the Stott two-part test, Gault has

not shown, at a high level of generality, that the position of

Deputy Clerk of Court relates to partisan political interests or

that    “the   position      involve[s]     government      decisionmaking       on

issues where there is room for political disagreement.”                         See

Stott, 916 F.2d at 142.            The responsibilities of Deputy Clerks

are generally limited to ministerial and administrative tasks,

and such responsibilities do not afford the Deputy Clerks any

discretion for which political affiliation might be relevant.



                                       77
Gault has therefore failed to satisfy the first prong of Stott,

and the Elrod–Branti exception is inapplicable to this case.

                                                 2.

       Even if I were to conclude otherwise and proceed to the

second prong of Stott, I would nevertheless hold that Lawson’s

particular      responsibilities            as    the      Union    County        Family    Court

Deputy Clerk did not transform her position into one for which

“party     affiliation         [or     political            allegiance]       is     an     . . .

appropriate      requirement.”               Bland,         730     F.3d     at    375     (first

alteration in original) (quoting Stott, 916 F.2d at 142).

       Under    South    Carolina          Law,       a    Deputy    Clerk    of    Court       may

perform all duties of the Clerk of Court, see S.C. Ann. § 14-17-

60, so I begin by exploring these responsibilities.                                  The Clerk

of Court “keeps records of the proceedings,” “is charged with

managing       the   juries      and       the        county      grand    jury,”         and    is

responsible      for    “[t]he       custody          of   the    courthouse,”       including

“the assignment of office space within the courthouse.”                                         J.A.

198.     With regard to Family Court in particular, the Clerk of

Court’s duties include “recouping the costs of public assistance

from parents with legal obligations for child support” and, in

some cases, “charg[ing] a fee of five percent of the delinquent

amount.”       Id.     In addition, the Clerk “performs duties relating

to   the   recording      of    land       titles,         liens    and    other     documents

affecting land titles.”              Id.

                                                 78
       The obligations of a Deputy Clerk in particular include

similarly administrative tasks, such as “setting up accounts and

refunding      payments      when    cases    were     closed,”       issuing      judges’

orders,    aggregating        and    reporting     court      data,      and     collecting

receipts.        J.A.      165,    167,   169.     Based      on   these        perfunctory

responsibilities, I see no indication that “party affiliation is

an appropriate requirement for the effective performance of the

public office.”         See Branti, 445 U.S. at 518.

       Gault argues that the Clerk of Court, as well as a Deputy

Clerk    serving      as    the    Clerk’s   alter     ego,     may      also    perform   a

number    of   tasks       that    involve   policymaking.            For      instance,   a

Deputy Clerk may “refer cases to a master in equity or special

referee    for     final      disposition;        order    that,      under      specified

circumstances,        personal      property      be   seized      and    sold;     suspend

income withholding for spousal or child support in Family Court

cases; and even declare drainage districts within the[] county

and make and enter final orders regarding the same.”                            Appellees’

Br. 25 (citations omitted).               Yet even if these tasks did involve

some    amount   of     policymaking       discretion—which           remains     unclear—

Gault has failed to show that these responsibilities require the

Deputy Clerk to hold a particular partisan affiliation.                                 Like

the hypothetical football coach discussed in Branti, the Deputy

Clerk of Court does not appear to hold a position for which

“party    affiliation         is     an   appropriate         requirement         for   the

                                             79
effective performance of the public office,” Branti, 445 U.S.

at 518, for surely a Republican and a Democrat would be equally

suited to refer cases to a master in equity (when instructed to

do    so    by    a   judge)    or    to   declare      a    drainage    district.       Cf.

Fields, 566 F.3d at 387 (“It is not enough for defendants to

show merely that local directors make some policy; the ultimate

question under Branti is whether local directors make policy

about matters to which political ideology is relevant, and we

conclude that they do not.”).

       Further,        Lawson’s       duty   to     supervise       three     other    staff

members       did     not      vest   her    with       the    kind      of   “significant

discretion” that requires political party allegiance.                              Knight v.

Vernon, 214 F.3d 544, 551 (4th Cir. 2000) (quoting Jenkins, 119

F.3d at 1162); see also Fields, 566 F.3d at 387 (“If having

power       over      subordinates         were     a   sufficient        condition      for

exemption from the requirements of the First Amendment, only the

most       low-level     government        employees        would   be    protected     from

politically-based hiring and firing.”).

       In the same vein, that Lawson’s position made her privy to

confidential information or that the position required her to

communicate           with     the    public       is       insufficient      to      warrant

application of the Elrod–Branti exception without an additional

showing that “party affiliation is an appropriate requirement

for    the       effective     performance         of   the    public     office.”       See

                                              80
Branti, 445 U.S. at 518.              In Fields, for instance, an applicant

for   the      position   of    local     director    of   the     Buchanan     County

Department of Social Services brought suit against members of

the Buchanan County Board of Supervisors for allegedly denying

her the position because of her party affiliation.                          566 F.3d

at 384.     The defendants in that case asserted that, “because a

local     director’s         duties     involve     confidential         information,

political affiliation is a relevant consideration under Stott.”

Id. at 387.       We rejected this argument, however, as “many social

services workers deal with confidential information.                            Yet it

cannot    be    the   case    that     party    affiliation   is    an    appropriate

criterion for the effective performance of their jobs.”                            Id.

at 388.        This Court held that the Elrod–Branti exception was

inapplicable and noted that “defendants attempt[ed] to fit the

local director position into the labeled category ‘confidential’

without explaining how it proves that political affiliation is

actually relevant to a local director’s duties.”                    Id.     Here too,

Gault emphasizes the confidential nature of Lawson’s position

and Lawson’s role as a communicator without establishing that

political       affiliation      was     actually    relevant      to     the   Deputy

Clerk’s duties.

                                           3.

      Further, this case differs significantly from Jenkins, in

which this Court held that North Carolina deputy sheriffs were

                                           81
policymakers      who     may    be    lawfully         terminated      for    political

reasons under the Elrod–Branti exception. 119 F.3d at 1164 (en

banc).        In reaching its decision, this Court considered that

“deputy sheriffs are the alter ego of the sheriff generally, for

whose conduct he is liable,” and that a deputy sheriff “hold[s]

an office of special trust and confidence, acting in the name of

and    with    powers   coterminous         with   his    principal,      the      elected

sheriff.”       Id. at 1163.      Similarly, because “the sheriff can be

held    liable    for   the     misbehavior        of   the     deputies,”     a     deputy

sheriff “serve[s] at the pleasure of the appointing officer.”

Id. at 1163–64.

       Although    much    of    the       same    is    true    for    Deputy       Clerks

relative to the Clerk of Court, this case differs from Jenkins

in one key respect: the Court in Jenkins relied on the North

Carolina      legislature’s      determination          that    the    sheriff     is   “an

important political figure.”               Id. at 1163 (emphasis added); see

also id. at 1164 n.52 (“The sheriff’s position in government

vests in him and his deputies ‘substantial responsibility for or

control    over   the     conduct     of    governmental         affairs.’”      (quoting

Cline v. Brown, 210 S.E.2d 446, 449 (N.C. Ct. App. 1974))).                             The

Court in Jenkins thus emphasized that deputy sheriffs “play a

special role in implementing the sheriff’s policies and goals,”

that     deputy    sheriffs       exercise         “significant        discretion       in

performing      their   jobs,”    and      that,    “[i]n       the   course    of    their

                                            82
duties, deputies will make some decisions that actually create

policy.”         Id. at 1162 (citation and internal quotation marks

omitted).        Accordingly, a deputy sheriff, who is the alter ego

of    the   sheriff     and    serves     at    the   sheriff’s       pleasure,   also

occupies a political position covered by Elrod–Branti.

       The Union County Clerk of Court, by contrast, is limited to

ministerial, administrative duties such that a Deputy Clerk, who

is    the   alter    ego   of    the     Clerk    and     serves    at    the   Clerk’s

pleasure, occupies an equally apolitical position.                        The limited

policymaking that the Clerk of Court and his Deputy Clerk might

perform does not allow for “significant discretion” of any kind.

Thus, Gault has failed to show that the position of Deputy Clerk

requires political allegiance to the Clerk.

                                           4.

       Most tellingly, the facts in this case clearly demonstrate

both that political party allegiance was not a requirement of

the    Deputy      Clerk      position    and     that     a   lack      of   political

allegiance would in no way hinder the operation of the public

office.         Gault indicated that he was “never asked” about his

political affiliation when he applied for the vacant position of

Clerk of Court in 2009.                J.A. 75.       After Gault’s appointment,

Lawson,     a    Democrat,      served    as    Deputy     Clerk    under     Gault,   a

Republican,       for   nearly     a     year    before    Lawson     announced    her



                                           83
candidacy.         In     fact,    as    discussed         above,       Gault       had   actually

promoted Lawson to that position.

       As one might expect, given that the Clerk and his Deputy

Clerks perform largely administrative tasks, the record contains

no indication that the bipartisan composition of the Clerk’s

Office   affected         the     office’s         operation.           I    therefore      cannot

conclude    that        Lawson’s    political            beliefs,       which       had   differed

from Gault’s for a significant period of time, somehow became

sufficiently relevant to her position as Deputy Clerk after the

2012     election         to      provide          lawful        grounds           for    Lawson’s

termination.         Cf.       Fields,       566    F.3d    at    387       (“Defendants       make

conclusory      assertions         about      the       local    director’s         policymaking

power,    but      they    cannot       show       ‘a    rational       connection        between

shared ideology and job performance.’” (quoting Stott, 916 F.2d

at   142)).        Accordingly,          I    would      hold     that       the    Elrod–Branti

exception     is    inapposite          to    this      case.       I       would    reverse   the

district court’s grant of summary judgment for Gault on this

basis.

                                               III.

       Gault next argues that he is entitled to qualified immunity

with   respect      to    Lawson’s       claims         against     him       in    his   personal




                                                84
capacity. 13     “The    doctrine     of   qualified       immunity    protects

government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.”    Gilchrist, 749 F.3d at 307 (quoting Stanton v. Sims,

134 S. Ct. 3, 4 (2013) (per curiam)).               To defeat a claim of

qualified immunity, a plaintiff must demonstrate that “(1) the

allegations    underlying     the   claim,    if   true,    substantiate    [a]

violation of a federal statutory or constitutional right” and

that “(2) this violation was of a clearly established right of

which a reasonable person would have known” at the time of the

violation.      Id.     at   308    (alteration    in    original)     (quoting

Ridpath, 447 F.3d at 306); see McVey, 157 F.3d at 276.                     That

said, “[t]he burden of proof and persuasion with respect to a

defense of qualified immunity rests on the official asserting

that defense.”        Meyers v. Balt. Cty., 713 F.3d 723, 731 (4th

Cir. 2013).

     In   assessing      whether     the     governing     law   was    clearly

established, “[w]e do not require a case directly on point”;


     13 The majority opinion only addresses Gault’s qualified
immunity defense in conjunction with the Elrod–Branti exception
and declines to examine this defense with respect to Pickering
balancing.    For the reasons expressed above regarding the
propriety of performing the Pickering balancing test on the
current record, I consider Gault’s qualified immunity defense
under both legal theories.


                                      85
rather, “existing precedent must have placed the statutory or

constitutional     question      beyond    debate.”           Gilchrist,      749     F.3d

at 307–08 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011)).      Thus, “officials can still be on notice that their

conduct      violates    established           law     even      in   novel     factual

circumstances.”         Meyers,    713     F.3d       at   734    (quoting     Hope     v.

Pelzer, 536 U.S. 730, 741 (2002)).                     This Court has indicated

that,     “particularly     in     First         Amendment        cases,      where      a

sophisticated balancing of interests is required to determine

whether      the   plaintiff’s      constitutional               rights     have      been

violated, ‘only infrequently will it be “clearly established”

that a public employee’s speech on a matter of public concern is

constitutionally protected.’”             McVey, 157 F.3d at 277 (quoting

DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995)).

                                          A.

       Nevertheless, this Court has repeatedly recognized that the

employer is certainly not entitled to qualified immunity in all

public employee speech cases.                  Indeed, in Robinson, 160 F.3d

at 189, in Durham, 737 F.3d at 303–04, and most recently in

Gilchrist, 749 F.3d at 313, this Court rejected the employer’s

assertion of qualified immunity.               In each case, this Court based

its “decision to deny qualified immunity in large part on ‘the

lack    of   evidence    supporting       the        [government’s]        interest    in

disciplining [the employees] for their speech.’”                          Brickey, slip

                                          86
op. at 21 n.6 (alterations in original) (quoting Robinson, 160

F.3d at 189); see also Ridpath, 447 F.3d at 321 (holding that an

employer was not entitled to qualified immunity for terminating

an employee “for making protected statements that [the employer]

did   not    like”        and       noting    that      “a     clearer       violation      of

constitutionally         protected        free     speech     would    be    difficult      to

fathom”).     The case before us most closely mirrors Gilchrist in

this manner.

      In Gilchrist, we began by defining Smith’s First Amendment

right at issue, at the appropriate level of specificity:

      [I]t is the right of an ADA running for public office
      not to be fired for speaking publicly in his capacity
      as a candidate on matters of public concern when the
      speech is critical of a program that substantially
      reduces the DA’s office’s caseload but there is no
      reason to believe the speech will negatively impact
      the DA’s office’s efficiency.

749 F.3d at 312.

      We    next    concluded          that      “[a]ny      reasonable       official      in

Gilchrist’s position would have been aware of that right on the

day of Smith’s termination” in July 2010.                       Id.    In reaching this

conclusion, the Court explained that, by July 2010, “it was well

established       that     a    government         employee’s       speech     made    as   a

private     citizen      on     a    matter      of   public       concern    is    balanced

against     the    adverse          effect    that     the     government       reasonably

anticipates       the    speech       will    have    on     its    ability    to     operate

efficiently.”            Id.        The   Court       emphasized      that,     under    the

                                              87
circumstances in Gilchrist, “there was no evidence forecasted in

the   summary   judgment       record”      that       Gilchrist     might    reasonably

expect   Smith’s      speech    to    have       any    particular        effect    on   the

workplace.      Id. at 312–13.              Accordingly, the Court explained

that “the general complexity of the balancing test is of no

consequence     in    this     case     since          there   is    nothing       on    the

employer’s side of the ledger to weigh.”                       Id. at 313.         We held

that Gilchrist had violated Smith’s clearly established right

and was therefore not entitled to qualified immunity.                         Id.

                                            B.

                                            1.

      Much like the constitutional right at issue in Gilchrist,

the First Amendment right implicated in this case is the right

of a Deputy Clerk of Court running for public office not to be

fired for speaking publicly in her capacity as a candidate on

matters of public concern when the speech is critical of the

source of funding for a coworker’s salary but there is no reason

to    believe   the    speech        will    negatively        impact       the    Clerk’s

Office’s   efficiency.          Cf.    id.       at    312.     As    I    have    already

determined that Gault’s termination of Lawson violated Lawson’s

right in this manner, the only remaining question is whether

this “right was ‘clearly established’ at the time of the acts

complained of such that an objectively reasonable official in

[Gault’s] position would have known of the right.”                            McVey, 157

                                            88
F.3d at 276 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).

     As    was   true     of       the   right    at     issue      in   Gilchrist,      any

reasonable official in Gault’s position would have been aware of

Lawson’s    right,      as     defined       above,      on   the    day    of   Lawson’s

termination.        Cf.      749    F.3d     at   312.        Indeed,      the   Court   in

Gilchrist   determined         that      a   nearly    identical         right   had   been

clearly established at the time of Smith’s termination in July

2010.     See id.       It naturally follows that the right at issue

here was clearly established at the time that Gault terminated

Lawson’s    employment        in    November      2012.        No    Supreme     Court    or

Fourth Circuit case muddled this area of law in the interim. 14

     Moreover,      the      Court’s     reasoning       in    Gilchrist     holds     true

here as well.        That is, it was clearly established in November

2012 that a court must balance a public employee’s speech on a


     14 Gault argues that Underwood v. Harkins, 698 F.3d 1335
(11th Cir. 2012), which was decided one month before Lawson’s
termination, demonstrates that Gault did not violate clearly
established law. In Underwood, the Eleventh Circuit affirmed a
grant of summary judgment in favor of a Georgia superior court
clerk who had terminated a deputy clerk’s employment after both
had run for the superior court clerk position. Id. at 1337–38,
1345–46.   As the right at issue was clearly established under
binding Fourth Circuit case law in November 2012, however, the
decision of another circuit did not affect the clarity of
governing precedent in this Circuit. See Hill v. Crum, 727 F.3d
312, 322 (4th Cir. 2013) (“[W]e have long held that it is case
law from this Circuit and the Supreme Court that provide[s]
notice of whether a right is clearly established.” (first
alteration in original) (citation omitted)).


                                             89
matter of public concern against the government’s interest in

providing effective and efficient services.                  See McVey, 157 F.3d

at 277.       It was also clearly established at the time that the

public employer bears the burden of justifying the employee’s

discharge on legitimate grounds, Rankin, 483 U.S. at 388 (citing

Connick, 461 U.S. at 150), such as by demonstrating that “damage

to   morale    and    efficiency    is     reasonably       to     be   apprehended,”

Jurgensen, 745 F.2d at 879.          Where, as here, the public employer

offers    no   evidence     to   demonstrate        that     the    employer     could

reasonably      have     expected        the     office’s        effectiveness    and

efficiency to suffer as a result of the employee’s speech, it

was clearly established that the balance would tip in favor of

the employee.        See Gilchrist, 749 F.3d at 313.

                                          2.

       Further, as the majority opinion concludes as well, it was

clearly established in November 2012 that an employment position

that does not “relate[] to ‘partisan political interests . . .

[or]   concerns,’”      Stott,     916    F.2d    at   141    (second      and   third

alterations in original) (quoting Branti, 445 U.S. at 519), is

not a position from which an employee may be terminated based on

political affiliation under Elrod–Branti.                   Thus, where there is

no indication that political party allegiance was relevant to

the effective performance of an employee’s duties, a reasonable

person would have known in November 2012 that termination of

                                          90
that     employee         based    on    political       affiliation         was     unlawful.

Accordingly,         I      would       hold     that        Gault     violated           clearly

established law by terminating Lawson’s employment, and he is

therefore not entitled to qualified immunity.

                                                IV.

       Finally, Gault argues that he is not subject to suit for

damages      in    his     official       capacity      due     to    Eleventh       Amendment

immunity.           The     Eleventh      Amendment          bars    suit    against       state

officials in their official capacity for damages under 42 U.S.C.

§ 1983.      Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989).           Local     officials,        however,       generally       do     not    enjoy

Eleventh     Amendment        immunity.          Cash    v.     Granville      Cty.       Bd.   of

Educ.,      242    F.3d     219,    222       (4th    Cir.    2001).         The    government

official asserting Eleventh Amendment immunity therefore bears

the burden of proving that he is a state official.                                   Hutto v.

S.C. Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).                                 “Whether an

action is barred by the Eleventh Amendment is a question of law

that we review de novo.”                Id.

       In     making        this        determination,          “the        most     important

consideration is whether the state treasury will be responsible

for paying any judgment that might be awarded.”                                    Id. at 543

(quoting Ram Ditta v. Md. Nat’l Capital Park & Planning Comm’n,

822 F.2d 456, 457 (4th Cir. 1987)).                          “[I]f the State treasury

will be called upon to pay a judgment against a governmental

                                                91
entity,    then    Eleventh     Amendment      immunity     applies   to    that

entity.”   Id. (quoting Cash, 242 F.3d at 223).               If, however, the

state   treasury   will   not   be    liable    for   a   judgment,   sovereign

immunity   applies    only    where    the     “governmental    entity     is   so

connected to the State that the legal action against the entity

would . . . amount to ‘the indignity of subjecting a State to

the coercive process of judicial tribunals at the instance of

private parties.’”        Id. (quoting Cash, 242 F.3d at 224).                  In

assessing whether allowing suit would offend a state’s dignity,

this Court considers “(1) the degree of control that the State

exercises over the entity or the degree of autonomy from the

State that the entity enjoys; (2) the scope of the entity’s

concerns—whether local or statewide[;] . . . and (3) the manner

in which State law treats the entity.”                    Id. at 546 (quoting

Cash, 242 F.3d at 224).

                                       A.

     I agree with the majority opinion that Gault has not met

his burden of demonstrating that he is a state official for

purposes of Eleventh Amendment immunity.              Gault relies solely on

Lawson’s allegation in the second amended complaint that “the

Union County Clerk of Court is a state office, existing and

operating under the laws of the State of South Carolina” and on

a South Carolina Supreme Court decision and several unpublished

federal district court decisions.            See Appellees’ Br. 41.         None

                                       92
of these sources demonstrates that the state treasury would be

liable for any judgment against Gault or that South Carolina

would suffer any indignity from such a judgment.

       Gault’s reference to the South Carolina Supreme Court case

State v. Sims, 18 S.C. 460 (1883), for the proposition that the

court has “long held that the clerk of court . . . is a state

officer,”     Appellees’    Br.   41    (citation     omitted),      is    wholly

unpersuasive.      Not only does the case date back to 1882, before

the evolution of Eleventh Amendment jurisprudence, but it also

presented no Eleventh Amendment issue.                See Sims, 18 S.C. at

463.    Although the court did refer to the Clerk of Court as a

“state officer,” it did not address whether a Clerk of Court’s

liability would affect the state treasury or state dignity such

that the Clerk might be a state officer for purposes of the

Eleventh Amendment.        See id.     Likewise, the unpublished federal

district    court    decisions       that    Gault    cites    are    similarly

unavailing.     None of the decisions analyzed whether the Clerk of

Court was a state or local official under the relevant legal

standard, and each merely presumed that the Clerk of Court is a

state   official    for   purposes     of   the   Eleventh    Amendment.     See

Appellees’ Br. 41 (citing Green v. Hyatt, No. 4:09-2573-TLW-TER,

2010 WL 597203, at *4 (D.S.C. Feb. 16, 2010), aff’d, 385 F.

App’x 318 (4th Cir. 2010) (unpublished) (per curiam); Harden v.

Bodiford, No. 6:09-2362-HFF-WMC, 2009 WL 3417780, at *3 (D.S.C.

                                       93
Oct. 21, 2009);          Muqit v. Kitchens, No. 2:08-3959-CMC-RSC, 2009

WL 87429, at *3 (D.S.C. Jan. 13, 2009)).                         Gault has therefore

failed    to     show    that    he     is     entitled     to   Eleventh     Amendment

immunity.

                                             B.

     Indeed,          evidence     on    the      record    indicates     that    South

Carolina’s treasury would not be liable for a judgment against

Gault.      A    Handbook    for      County      Government     in   South   Carolina,

which includes a description of the role of Clerk of Court,

provides that “individual county employees and officials” who

are sued pursuant to § 1983 are “generally . . . covered by the

county’s insurance policy.”              J.A. 198, 200.          It appears that the

phrase “individual county employees and officials” includes the

Clerk of Court, as “[a]ll of the funding for the clerk of court

and the clerk’s office is the responsibility of the county.”

Id. at 198.

     Moreover, the record contains no indication that judgment

against Gault would offend the dignity of South Carolina.                             It

seems    that     the    state’s      control     over     the   Clerk   of   Court   is

limited;        for     instance,       South      Carolina’s      Judicial      Council

indicated that it had no authority to overrule Gault’s decision

to place Lawson on unpaid leave.                     In addition, the Clerk of

Court is elected by the voters of a particular county and is the

Clerk only of courts within that county.                         See S.C. Code Ann.

                                             94
§§ 14-17-10, 14-17-20.            Accordingly, I would hold that Eleventh

Amendment      immunity     does      not   bar       Lawson’s       § 1983    claim    for

damages against Gault in his official capacity.

                                            V.

      For the foregoing reasons, I cannot join the majority’s

opinion merely reversing the district court’s grant of summary

judgment    for     Gault   without       even     reaching      a    conclusion       under

Pickering      balancing.          Instead,       I    would     hold    that       summary

judgment for Lawson is appropriate, as the Pickering balancing

test—which this Court has every reason (and duty) to conduct on

this record—weighs conclusively in Lawson’s favor, the Elrod–

Branti exception does not apply, and Gault is not entitled to

qualified      or   Eleventh     Amendment        immunity.           Gault    had     ample

notice and opportunity to present his arguments on the legal

issues   in    this    case—including          any     arguments       under    Pickering

balancing—before the district court.                    See Hr’g Tr. 6–7, Lawson,

No. 7:13-CV-01050(TMC) (D.S.C. Oct. 30, 2014) (“But once this

case gravitated into the Pickering thing, we addressed that in

the reply brief and argued that we were entitled to summary

judgment [on that basis as well].”).                     Most assuredly, there is

no   genuine    dispute     as     to    any     material    fact,      and    Lawson    is

entitled to judgment as a matter of law.                             See Fed. R. Civ.

P. 56;   Celotex      Corp.      v.     Catrett,      477   U.S.      317,    326    (1986)

(“[D]istrict courts are widely acknowledged to possess the power

                                            95
to enter summary judgments sua sponte, so long as the losing

party was on notice that she had to come forward with all of her

evidence.”); U.S. Dev. Corp. v. Peoples Fed. Sav. & Loan Ass’n,

873 F.2d 731, 735–36 (4th Cir. 1989) (same); see also Gibson v.

Mayor & Council of City of Wilmington, 355 F.3d 215, 224 (3d

Cir. 2004) (recognizing three different exceptions to the ten-

day notice requirement prior to a sua sponte grant of summary

judgment—“the presence of a fully developed record, the lack of

prejudice,      or   a    decision     based      on   a   purely    legal       issue”—and

holding that any of the three would justify a sua sponte grant

of    summary    judgment        in   that     case);        Sharp   Elecs.      Corp.    v.

Deutsche Fin. Servs. Corp., 216 F.3d 388, 398 (4th Cir. 2000)

(reversing summary judgment against appellant and ordering entry

of summary judgment in favor of appellant despite the fact that

appellant never sought summary judgment in the district court);

Portsmouth Square Inc. v. S’holders Protective Comm., 770 F.2d

866,   869   (9th    Cir.    1985)        (“[S]ua      sponte     summary    judgment      is

appropriate      where     one    party      moves     for    summary     judgment       and,

after the hearing, it appears from all the evidence presented

that there is no genuine issue of material fact and the non-

moving party is entitled to judgment as a matter of law.”).

                              *       *       *        *      *

       I would reverse the judgment and remand with instructions

to:    (1)   enter       judgment     of    liability        in   favor     of    Appellant

                                             96
Melanie Lawson and (2) conduct such proceedings as to remedy

that the district court finds necessary and appropriate.




                               97
