                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                     Nos. 95-4982 & 95-5176.

  Richard Mark CUTCLIFFE, Vicki Cutcliffe, George Raggio, Jr., Carole Raggio, Plaintiffs-
Counter-Defendants-Appellants,

                                                  v.

  Ronald COCHRAN, as Sheriff of Broward County, Florida, Norman Botsford, individually,
Defendants-Counter-Claimants-Appellees.

                                            July 29, 1997.

Appeals from the United States District Court for the Southern District of Florida. (No. 93-6099-
CIV-WDF), Wilkie D. Ferguson, Jr., Judge.

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and HARRIS*, Senior District
Judge.

       BARKETT, Circuit Judge:

       In this action, based on 42 U.S.C. § 1983, alleging dismissal based on the exercise of

protected speech and association, plaintiffs, former deputy sheriffs in the Broward County Sheriff's

Office, appeal the district court's summary judgment in favor of Ronald Cochran, Sheriff of Broward

County. The district court found that the deputies had been fired because of political affiliation. The

court then concluded that under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976),

Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Terry v. Cook, 866 F.2d
373 (11th Cir.1989), political affiliation was an appropriate requirement for the position of deputy

sheriff, and granted Cochran's motion for summary judgment.

       Defendant Ronald Cochran, a Democrat, was elected Sheriff of Broward County in a contest

with a Republican candidate who had defeated incumbent Sheriff Nick Navarro in the Republican

primary. The plaintiffs, appointed to their deputy sheriff positions by Navarro, actively supported

him in the primary election. They allege that they were dismissed from these positions in retaliation

for their political activities on behalf of Navarro and for their familial association with a former


   *
    Honorable Stanley S. Harris, Senior U.S. District Judge for the District of Columbia, sitting
by designation.
opponent of Sheriff Cochran, violating their First Amendment rights to political speech and political

and intimate association.

        We review grants of summary judgment de novo, applying the same legal standard that the

district court used. McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir.1994). Summary judgment

is appropriate if, after examining the entire record, the court concludes there is no genuine issue of

material fact. Fed.R.Civ.P. 56(c).

        Plaintiffs claim that their dismissals violated political speech, familial association, and

political affiliation or association rights protected by the First Amendment. Plaintiffs can avoid

summary judgment by pointing to evidence in the record which, if credited, would permit a rational

fact-finder to conclude that their conduct was constitutionally protected and that the protected

conduct was a substantial factor in their dismissals. Mt. Healthy City School District Board of Educ.

v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

        Plaintiffs have asserted little more than the fact of their familial relationship to Cochran's

alleged political nemesis, Leo Callahan, to support their view that this relationship was a substantial

or motivating factor in their dismissals. As a result, they have failed to create a question of material

fact which would warrant presentation of their familial association claim to a fact-finder; summary

judgment on that claim, therefore, was appropriate. We turn now to plaintiffs' claims that their

dismissals violated their First Amendment speech and association rights.

        It is well settled that an individual is not stripped of First Amendment rights simply by virtue

of government employment. "Absent some reasonably appropriate requirement, government may

not make public employment subject to the express condition of political beliefs or prescribed

expression." O'Hare Truck Service, Inc. v. City of Northlake, --- U.S. ----, ----, 116 S.Ct. 2353,

2357, 135 L.Ed.2d 874 (1996). In fashioning legal standards for evaluating which restrictions are

"reasonably appropriate," the Supreme Court has developed two lines of inquiry: the Elrod-Branti

standard for discrimination based on political affiliation and a balancing test for discrimination

based on political speech. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20

L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708
(1983). See also Bd. of Cty. Com'rs, Wabaunsee County, KS. v. Umbehr, --- U.S. ----, ----, 116 S.Ct.

2342, 2347, 135 L.Ed.2d 843 (1996) (collecting cases).

       The Supreme Court first addressed the issue of political affiliation as a legitimate

employment criterion in Elrod v. Burns. The case involved a newly elected Democratic sheriff who

fired various Republican employees in the sheriff's office and held that politically motivated

discharges were unconstitutional because they amounted to a denial of a government benefit based

on an unconstitutional condition, namely the coercion of an employee's freedom of association.

While the government might legitimately use such practices in some circumstances, the strict

scrutiny applicable to infringements of First Amendment rights requires the government to show that

the practice furthers a vital government interest by the least restrictive means. The plurality1

reasoned:

       if conditioning the retention of public employment on the employee's support of the in-party
       is to survive constitutional challenge, it must further some vital government end by a means
       that is least restrictive of freedom of belief and association in achieving that end, and the
       benefit gained must outweigh the loss of constitutionally protected rights.

Id. at 362, 96 S.Ct. at 2685. Thus, patronage dismissals were not the least restrictive means of

achieving this end because public employees could be discharged for insubordination or poor job

performance when those bases in fact exist. Id. at 364-67, 96 S.Ct. at 2685-86. Likewise, the

interest of preserving the democratic process and partisan politics does not warrant such dismissals

because "patronage [also] is an effective impediment to associational and speech freedoms ... the
gain to representative government provided by the practice of patronage, if any, would be

insufficient to justify its sacrifice of First Amendment rights." Id. at 369-70, 96 S.Ct. at 2688

(emphasis added).

       Also incapable of fully supporting patronage dismissals is the notion that new

administrations in a representative government need the political loyalty of employees in order to

avoid potentially obstructionist tactics. "The justification is not without force, but is nevertheless

inadequate to validate patronage wholesale ... Limiting patronage dismissals to policymaking

   1
   Justice Brennan wrote an opinion, joined by Justices White and Marshall. Justice Stewart
wrote a separate opinion concurring only in the judgment that was joined by Justice Blackmun.
positions is sufficient to achieve this governmental end." Id. at 367, 96 S.Ct. at 2687. In delineating

the exception, it was recognized that:

               No clear line can be drawn between policymaking and nonpolicymaking positions.
       While nonpolicymaking individuals usually have limited responsibility, that is not to say that
       one with a number of responsibilities is necessarily in a policymaking position. The nature
       of the responsibilities is critical. Employee supervisors, for example, may have many
       responsibilities, but those responsibilities may have only limited and well-defined objectives.
       An employee with responsibilities that are not well defined or are of broad scope more likely
       functions in a policymaking position. In determining whether an employee occupies a
       policymaking position, consideration should also be given to whether the employee acts as
       an adviser or formulates plans for the implementation of broad goals.

Id. at 367-68, 96 S.Ct. at 2687. Finally, the plurality in Elrod held that the government had not met

its burden in demonstrating an interest sufficient to override an encroachment on the First

Amendment rights of a public employee, and that close cases should be resolved in favor of the

employee. Id. at 368, 96 S.Ct. at 2687.

       In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the majority of

the Court held that the dismissal of two assistant public defenders, who were among six threatened

with dismissal from a staff of nine because they were Republicans, violated the First Amendment.

In its holding, the Court refined the applicability of the First Amendment to policymaking positions:

       [t]he 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, 100 S.Ct. at 1295.

       Branti recognized that circumstances may exist in which "a position may be appropriately

considered political even though it is neither confidential nor policymaking in character" but that

"party affiliation is not necessarily relevant to every policymaking or confidential position." Id. at

518, 100 S.Ct. at 1294.

       Shortly after Branti was decided, this court decided Terry v. Cook. In Terry, a newly elected

sheriff refused to reappoint any of the deputy sheriffs, clerks, jailers or process servers who served

under his predecessor. The court held that "loyalty to the individual sheriff and the goals and

policies he seeks to implement ... is an appropriate requirement for the effective performance of a

deputy sheriff." Id. at 377. The court described deputy sheriffs as the "alter ego" of the sheriff and
reasoned that the "closeness and cooperation required between sheriffs and their deputies

necessitates the sheriff's absolute authority over their appointment and/or retention." Id. at 377. The

court concluded that deputy sheriffs were susceptible to patronage dismissals.

         In this case, although plaintiffs allege that their dismissals were motivated by political

association (among other factors), they argue that Terry is not controlling because Cochran has

engaged in selective dismissals, and not the "wholesale" or "en masse" dismissals conducted in

Terry. We are not persuaded by this distinction. While Terry did involve the dismissal of the entire

deputy sheriff force, that factor is not essential to its broad holding that sheriffs have the authority

to fire their deputies for political affiliation reasons. Accordingly, we find Terry controlling,

although we also believe that Terry should be revisited en banc because it may be viewed as

inconsistent with Branti.

        Branti flatly rejects the notion that policy makers qua policy makers should be subject to a

political affiliation requirement; rather, it demands a showing that the position, policy-making or

otherwise, implicates partisan political concerns in its effective functioning. Under Branti, political

fealty could be required of deputy sheriffs whose job duties involved handling information of a

partisan political nature. But other deputy sheriffs, involved in investigating crimes, patrolling

roads, or transporting prisoners, may never deal with such sensitive information or confidences.

Terry could be viewed as ignoring this distinction, and offering no explanation for how the duties
of individual deputy sheriffs relates to party affiliation.2

        The Terry court's confusion in applying the Elrod-Branti standard is not surprising as there

appears to be a conflict among the circuits in patronage cases arising in sheriffs' offices. After

examining the various tasks of deputy sheriffs, courts in the Third, Fourth, Fifth, and Tenth Circuits

have ruled that those job functions do not require political affiliation with the elected sheriff for their




   2
    We note that the Terry court properly applies Branti when it turns to the claims brought by
the other personnel in the sheriff's office: "This is a determination that depends upon the actual
responsibilities of each position and the relationship of each to the sheriff." Id. at 378.
effective performance. Thus, deputy sheriffs are entitled to protection from patronage dismissals.3

In addition to this circuit, only the Seventh Circuit has held that deputy sheriffs may be hired or fired

on political grounds.

        In Upton v. Thompson, 930 F.2d 1209 (7th Cir.1991), cert. denied, 503 U.S. 906, 112 S.Ct.

1262, 117 L.Ed.2d 491 (1992), and in Dimmig v. Wahl, 983 F.2d 86 (7th Cir.), cert. denied, 510 U.S.

861, 114 S.Ct. 176, 126 L.Ed.2d 135 (1993), the Seventh Circuit held that political affiliation was

an appropriate requirement for the job of deputy sheriff because a sheriff's political fortunes were

so closely tied to the job performance of deputy sheriffs. This reasoning was adopted from an earlier

Seventh Circuit case, Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.1985).4

        Notwithstanding that plaintiffs may be entitled to a factual determination under Branti as to

whether their positions implicate partisan political concerns in their effective functioning, we read

their claim as precluded by Terry. We are bound by that prior panel decision which only the en banc

court can reverse.

        Plaintiffs also allege that, rather than mere political affiliation, other conduct protected by


   3
   Burns v. County of Cambria, 971 F.2d 1015, 1022 (3rd Cir.1992), cert. denied, 506 U.S.
1081, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993); Jones v. Dodson, 727 F.2d 1329 (4th Cir.1984);
Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir.1981), cert. denied, 456 U.S. 925, 102 S.Ct.
1969, 72 L.Ed.2d 440 (1982); Francia v. White, 594 F.2d 778 (10th Cir.1979).
   4
    Application of the Seventh Circuit's broad test has led to results far afield from Branti. In
Americanos v. Carter, 74 F.3d 138 (7th Cir.1996), for example, the Seventh Circuit concluded
that every Deputy Attorney General in Indiana's Attorney General's Office was subject to
patronage dismissal because each had "meaningful input into governmental decisionmaking on
issues where there is room for principled disagreement on goals and implementation." Id. at
141-42. Americanos appears to lie in sharp contrast to the facts of Branti itself, where the
Supreme Court held that assistant public defenders were protected from patronage dismissal,
even when the staff consisted of only nine public defenders. We further contrast Americanos
with Justice Powell's dissent in Branti, where he questioned whether, under the holding in
Branti, the United States Attorney for each district, not Assistant U.S. Attorneys, could be
dismissed for political reasons:

                [I]t would be difficult to say, under the Court's standard, that "partisan" concerns
                properly are relevant to the performance of the duties of a United States Attorney.

        445 U.S. at 524, 100 S.Ct. at 1298 (Powell, J. dissenting). Although Branti may permit
        the dismissal of the U.S. Attorney of a district and some of his or her chief deputies, we
        believe Branti would not permit the dismissal of all Assistant U.S. Attorneys for
        patronage reasons.
the First Amendment prompted their dismissals. Specifically, plaintiffs asserted in their complaint

that they "participated in public political activity in support of Navarro on several occasions ... and

contributed personal funds to Navarro's campaign." This allegation simply conveys plaintiffs'

political affiliation. Had there been allegations that the expressions involved more than bare

statements of support for a candidate, the claim would deserve a more detailed analysis under

Pickering.5 At this point, as in Branti, the only interest at issue is the right of political affiliation

which, that case teaches us, cannot be overcome except by a determination that affiliation is essential

to the employee's effectiveness. The record supports the district court's finding that plaintiffs "were

terminated on the basis of their loyalty and support for the former sheriff. This is a classic Elrod-

Branti political patronage dismissal case."

        Under Terry v. Cook, defendant was entitled to a grant of summary judgment.

        AFFIRMED.

        KRAVITCH, Senior Circuit Judge, specially concurring:

        I join Judge Barkett's opinion for the court, except that I take no position regarding whether

the en banc court should or should not reexamine the holding of Terry v. Cook, 866 F.2d 373 (11th

Cir.1989).

        HARRIS, Senior District Judge, specially concurring:

        I concur in the result reached by the majority, believing, as Judges Barkett and Kravitch do,

that this court's opinion in Terry v. Cook, 866 F.2d 373 (11th Cir. 1989), is controlling and

necessitates affirmance. I also believe, however, that certain aspects of this case warrant additional

comments, some of which reflect disagreement with respect to portions of the majority opinion.

        An analysis of the legal issues inevitably begins with the unique case of Elrod v. Burns, 427

U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). There, two diametrically opposed viewpoints were

expressed: one by Justice Brennan, joined by Justices White and Marshall, and one by Justice


   5
    More precisely, had there been further allegations that (1) plaintiffs had engaged in
expressive conduct beyond mere manifestation of political affiliation; and (2) the conduct was a
"substantial" or "motivating" factor in the dismissals, their claim would warrant a Pickering
analysis.
Powell, joined by Chief Justice Burger and Justice Rehnquist. Thus, there were three votes one way,

and three the other. Such a split, obviously, would not have been affirmatively dispositive. So,

enter Justice Stewart, joined by Justice Blackmun. To create a 5-3 disposition of the case, Justice

Stewart stated both briefly and clearly (427 U.S. at 374-75, 96 S.Ct. at 2690):

               Although I cannot join the plurality's wide-ranging opinion, I can and do concur in
       its judgment.

              This case does not require us to consider the broad contours of the so-called
       patronage system, with all its variations and permutations. In particular, it does not require
       us to consider the constitutional validity of a system that confines the hiring of some
       governmental employees to those of a particular political party, and I would intimate no
       views whatever on that question.

               The single substantive question involved in this case is whether a nonpolicy making,
       nonconfidential government employee can be discharged or threatened with discharge from
       a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree
       with the plurality that he cannot. See Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S.Ct.
       2694, 2697-2698, 33 L.Ed.2d 570.

       It is noted that Justice Stewart characterized Justice Brennan's opinion as a "plurality"

opinion, and typically it is so labeled (or mislabeled). However, analytically it seems to me that the

use of that term elevates Justice Brennan's opinion—thoughtful as it may have been, as was Justice

Powell's opposing opinion—to a status beyond that to which it is entitled. It is my belief that Elrod

v. Burns stands for what Justice Stewart said, and that Justice Brennan's "wide-ranging opinion"

does not have meaningful viability beyond the limited contours set by Justices Stewart and

Blackmun. Thus, I do not believe that the majority's reliance upon Justice Brennan's opinion,
beyond the boundaries established by Justice Stewart's brief opinion, is justified.1

       The next relevant case to be decided by the Supreme Court was Branti v. Finkel, 445 U.S.

507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). There, a true majority opinion was issued, written by

Justice Stevens. The interrelationship between Branti and Elrod is intriguing. Initially, consistent

with what I have suggested, Justice Stevens found it necessary to cobble together the separate

opinions of Justices Brennan and Stewart in Elrod v. Burns in order to extract a holding, however


   1
    I believe the same is true with respects to this court's opinion in Parrish v. Nikolits, 86 F.3d
1088 (11th Cir. 1996), in which (in an opinion also written by Judge Barkett) there are numerous
references to Justice Brennan's reasoning in Elrod v. Burns.
limited, from that case. See, e.g., id. at 516-17, 100 S.Ct. at 1294. The case involved two Assistant

Public Defenders from Rockland County, New York, who faced dismissal solely because of their

political affiliation. Thus, Branti was a pure political patronage case.2 The Court concluded that

the county Assistant Public Defenders could not be dismissed based only upon their political

affiliation. Justice Stewart, whose acquiescence in the judgment was essential to the decision in

Elrod, dissented in Branti (as did Justices Powell and Rehnquist). His dissent began (id. at 521, 100

S.Ct. at 1296):

               I joined the judgment of the Court in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673,
       49 L.Ed.2d 547, because it is my view that, under the First and Fourteenth Amendments, "a
       nonpolicymaking, nonconfidential government employee can[not] be discharged ... from a
       job that he is satisfactorily performing upon the sole ground of his political beliefs." Id., at
       375, 96 S.Ct., at 2690. That judgment in my opinion does not control the present case for
       the simple reason that the respondents here clearly are not "nonconfidential" employees.

       In his dissent in Branti, Justice Powell noted in part (id. at 524, 100 S.Ct. at 1297):

               In Elrod v. Burns, three Members of the Court joined a plurality opinion concluding
       that nonpolicymaking employees could not be dismissed on the basis of political affiliation.
       Two Members of the Court joined an opinion concurring in the judgment and stating that
       nonpolicymaking, nonconfidential employees could not be so dismissed. Notwithstanding
       its purported reliance upon the holding of Elrod, the Court today ignores the limitations
       inherent in both views. (Internal citations omitted.)

Justice Powell shortly thereafter stated (id. at 525, 100 S.Ct. at 1297):

               The standard articulated by the Court is framed in vague and sweeping language
       certain to create vast uncertainty.[3]

       Is there confusion in this area of the law? Members of the Supreme Court are among those

   2
    It should be noted that in Elrod v. Burns, the Chief Justice also wrote a dissent, beginning it
by stating (427 U.S. at 375, 96 S.Ct. at 2690):

               The Court's decision today represents a significant intrusion into the area of
       legislative and policy concerns—the sort of intrusion Mr. Justice BRENNAN has
       recently protested in other contexts.
   3
    Justice Powell went on, inter alia, to point out some of the problems raised by Branti,
including a reference to how important political affiliation is to the selection by the President of
United States Attorneys. (445 U.S. at 525-27, 100 S.Ct. at 1298.) Of course, Justice Powell is
aware that United States Attorneys are presidential appointees who serve at the pleasure of the
President. It puzzles me as to how the majority in this case can take Justice Powell's comments
in a dissent in a case involving county Assistant Public Defenders, bring them into this
case—which involves county Deputy Sheriffs—and volunteer dicta as to what may or may not
be done with respect to the employment of Assistant United States Attorneys. See fn. 4 of
majority opinion.
who have expressed their belief that there is, and my study of the subject matter leads me to the

same conclusion.4 The majority in this case expresses its belief that there was "confusion" on the

part of this court's Terry panel in deciding that case. To the extent that there can be an absence of

confusion in this area of the law (and I acknowledge that I consider Justice Powell's reasoning to be

more sound than that of those espousing conflicting views), I believe the Terry panel correctly

decided the case before it.

       Judge Barkett's opinion for the majority states that "we also believe that Terry should be

revisited en banc because it may be viewed as inconsistent with Branti." It is implied that the way

to revisit Terry is through this case. I respectfully disagree. Judge Kravitch, in her special

concurrence, expressly takes no position on this question. There are several reasons for my

disagreement. First, I think Terry v. Cook was correctly decided. Second, Branti was a pure

political affiliation case (although, as noted, Justice Stewart dissented in Branti because he viewed

Assistant Public Defenders as "clearly ... not "non-confidential' employees.") Here, appellants

engaged in extensive activities on behalf of one of Cochran's opponents.5 In footnote 1 in his

summary judgment opinion, the trial judge stated:

               Although Sheriff Cochran was the Democratic candidate and Navarro ran as a
       Republican, affiliation with a particular party is not the issue here. Political patronage in this
       case refers not to political party affiliation, but rather to what other courts have described as
       the employees' "commonality of political purpose and support." See, e.g., Williams v. City
       of River Rouge, 909 F.2d 151, 153, n.4 (6th Cir. 1990).

   4
    This uncertainty should make a prudent court—like the panel in Terry v. Cook—reluctant to
extend Branti much beyond both its factual context and the true meaning of Elrod.
   5
    The appellants' depositions were taken. Their principal political activities were conducted in
the primary, in support of a candidate who would have faced Sheriff Cochran had he not lost in
the primary. The Cutcliffe appellants (Mark and Vicki) gave money personally (perhaps the
maximum of $2,000) and collected more than an additional $10,000 for Navarro. They
purchased campaign tickets (barbecues, etc.) and sold them to co-workers. They put Navarro
signs around their home. They and their children stuffed envelopes for Navarro's re-election
committee, and Vicki told her co-workers that Navarro would be a better sheriff than Cochran.

             The Raggio appellants (George and Carole) contributed the maximum allowable
       amount to Navarro's campaign. Carole solicited funds from business people, and carried
       Navarro signs in public. She attended as many Navarro functions as she could, and
       recommended Navarro as the better choice, although she did not openly criticize
       Cochran. Other than contributing the maximum permissible to Navarro's campaign,
       George Raggio did not describe his support specifically.
Third, to me there is a significant difference between a county's Assistant Public Defender (as in

Branti) and a county's Deputy Sheriff, the former's job is simply to defend those charged with a

crime, while the latter's responsibilities frequently involve a high degree of trust in sensitive areas

of law enforcement, including possible public corruption.6 Fourth, even if the Terry panel could be

considered to have decided that case imperfectly, the situation before us will not recur under

currently existing statutory law. Since 1995, Florida's law has provided as follows:

       30.078. Continuation of appointment after a change in sheriff

               When a newly elected or appointed sheriff assumes office, the incoming sheriff may
       not terminate the employment of any deputy sheriff covered by ss. 30.071-30.079 for lawful
       off-duty political activity or for a discriminatory reason. The incoming sheriff may replace
       deputy sheriffs assigned to managerial, confidential, or policymaking positions or part-time
       deputy sheriffs.

       In sum, I concur in the result, and an of the belief that Terry v. Cook was decided correctly.

While the decision as to whether to revisit that opinion through going en banc in this case is up to

my distinguished temporary colleagues, the issue now is dealt with by statute and I believe this case

should end here—although I also believe that the subject matter cries out for elucidation from the

Supreme Court in some appropriate future case.




   6
    The Terry v. Cook panel stated in part (866 F.2d at 377):

              The closeness and cooperation required between sheriffs and their deputies
       necessitates the sheriff's absolute authority over their appointment and/or retention.
