Candace A. Beauregard; Aubrey B. Campbell; May H. Jones;carolyn C. Whitehead, Plaintiffs-appellees, v. Thomas Olson, Individually and in His Official Capacity Astax Collector of Marion County, Florida, Defendant-appellant,marion County, Florida, Defendant, 84 F.3d 1402 (11th Cir. 1996)

This interlocutory appeal is from the denial of Thomas Olson's motion for summary judgment based on qualified immunity. We reverse the order denying qualified immunity, and we instruct that the district court grant Olson immunity. We also remand for further proceedings.

Defendant Olson has been the Marion County (Florida) Tax Collector since 1971. Plaintiffs are four of his former employees. The Tax Collector--a constitutionally-created elected position--is responsible for collecting taxes. Under Florida law, see Fla.Stat. § 197.103, the Tax Collector is authorized to appoint deputies to act in his behalf in carrying out the duties of the office. Olson deputized all his employees, including Plaintiffs.

In 1992, Olson was opposed for reelection. At the outset, Olson advised all staff members that they were free to support either him or his opponent or to remain neutral. Two of the plaintiffs, Whitehead and Jones, supported Olson's opponent. The other two plaintiffs, Beauregard and Campbell, say they remained neutral during the campaign.

Olson was reelected. Over three months later, Olson fired five employees, including the four plaintiffs. Olson says that the terminations were based on reasons other than Plaintiffs' failure to support his reelection bid. Asserting these non-political reasons to be pretextual, Plaintiffs sued Olson individually and in his official capacity under 42 U.S.C. § 1983. They claimed that Olson, acting under color of state law, deprived them of their First Amendment right not to be fired for political patronage reasons.

Olson moved for summary judgment; one argument he made was that he was entitled to qualified immunity. The district court granted Olson's motion, in part because Plaintiffs were deputized employees of the Tax Collector. But, the district court later vacated this order and then denied Olson immunity. In its order denying Olson immunity, the district court wrote only that "it is clear that genuine issues of material fact remain to be resolved in this case;" the court did not discuss whether, taking all disputed facts in favor of Plaintiffs, it was clearly established that Olson acted unlawfully in firing Plaintiffs.

Olson then filed a motion to reconsider. In the order denying Olson's motion to reconsider, the district court observed that "plaintiffs have offered evidence that tends to show that they were nothing more than ministerial employees." And, the district court concluded that the firings of Plaintiffs, "if they occurred for political reasons, would necessarily violate clearly established rights in that it is clear that clerical employees are entitled to the protection Plaintiffs seek."

For purposes of our review we accept as true both that Plaintiffs' job duties were ministerial and that Olson fired them for political reasons.¹  Even so, Olson says he is entitled to qualified immunity. So, we have jurisdiction, see Behrens v. Pelletier, --- U.S. ----, ---- 116 S. Ct. 834, 842, 133 L. Ed. 2d 773 (1996), to decide the core qualified immunity question of whether it was clearly established before Olson acted that he could not lawfully fire these deputized clerical employees of the Tax Collector's office for political reasons.

Some employees do have a general First Amendment right not to be fired for political patronage reasons. See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (plurality opinion); and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). An employee might have this right if political affiliation is not an appropriate requirement for the effective performance of the job. See Branti, 445 U.S. at 518-20, 100 S. Ct. at 1295; see also Terry v. Cook, 866 F.2d 373, 377 (11th Cir. 1989).

Olson, holding an office created by the Florida constitution, was empowered by Florida law to appoint deputies. All Plaintiffs were appointed deputies. This fact is important.²  As deputies, Plaintiffs were authorized, by Florida law, to act on Olson's behalf in carrying out the duties of the Tax Collector's office. Olson says that Terry v. Cook makes clear that all deputies who have authority under state law to act on behalf of a state officer can be fired for patronage reasons--regardless of the particular deputies' historical, actual duties.³  Plaintiffs, citing to Elrod, supra, respond that no rule exists permitting all deputies to be lawfully fired on patronage grounds. Instead, they say that what is required is an assessment of Plaintiffs' actual duties to determine whether, in fact, political loyalty is an appropriate requirement for the effective performance of their jobs.

But, in this qualified immunity case, we need not decide whether these deputized employees empowered by Florida law to act on behalf of the Tax Collector (a constitutional officer who faces partisan elections) can lawfully be fired for patronage reasons regardless of their actual duties. For Olson personally to prevail, it is enough if it was not clearly established that firing Plaintiffs for political patronage reasons would violate federal law.⁴  As we explained in Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc), for the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to every reasonable person in Olson's place that to fire Plaintiffs would violate federal law.

None of the cases cited to us by Plaintiffs have so developed the law for deputy Tax Collectors in Florida. Plaintiffs rely chiefly on Elrod, Branti, and Terry. Terry, supra, is a case which Olson says actually shows the firings were lawful; and, to say the least, it certainly does not clearly establish the unlawfulness of these firings.⁵  Elrod, supra, also does not clearly establish the unlawfulness of Olson's acts--even though one plaintiff in that case was "Chief Deputy of the Process Division."⁶ 

The other important case cited by Plaintiffs is Branti, supra, where the Supreme Court held unlawful the firings of two assistant public defenders. Branti is not "materially similar" to this case, which involves deputized employees of the Marion County Tax Collector's office. See Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir. 1993) (facts of prior cases must be "materially similar" to clearly establish law).⁷ 

Violations of the constitutional right at issue in this case (the First Amendment right not to be fired for patronage reasons) are determined based on a standard "framed in vague and sweeping language certain to create vast uncertainty." Branti, 445 U.S. at 522-24, 100 S. Ct. at 1297 (Powell, J. dissenting). In the light of such a vague standard, "elected and appointed officials at all levels ... no longer ... know when political affiliation is an appropriate consideration in filling a position." Id. at 522-26, 100 S. Ct. at 1297-98.

Justice Powell's concerns in Branti do not make Branti any less the law, but they do help explain why we have observed that "defendants who allegedly violate public employees' First Amendment freedoms rarely act within 'clearly established' contours of law." Hansen v. Soldenwagner, 19 F.3d 573, 575 (11th Cir. 1994). This case is not the exceptional case where the individual defendant is unentitled to qualified immunity: it was not clearly established at the time Olson acted that firing Plaintiffs was unlawful.

The order denying Olson, in his personal capacity, summary judgment based on qualified immunity is vacated; we remand for further proceedings⁸  and instruct that Olson be granted qualified immunity.

VACATED AND REMANDED.