Compucredit Holdings Corporation v. Akanthos Capital Management, LLC

698 F.3d 1348

11th Cir.

2012

Check Treatment

Docket

COMPUCREDIT HOLDINGS CORPORATION, Plaintiff--Appellant, v. AKANTHOS CAPITAL MANAGEMENT, LLC, Aria Opportunity Fund Ltd., AQR Absolute Return Master Account, L.P., CC Arbitrage, Ltd., CNH CA Master Account, L.P., et al., Defendants--Appellees.

No. 11-13254.

United States Court of Appeals, Eleventh Circuit.

Oct. 19, 2012.

698 F.3d 1348

the same,” and that Georgia law only “nominally grants deputy clerks” the same authority as the clerk). At this stage of the litigation, Ms. Underwood has carried her burden of showing that, in her position as deputy clerk, she was a ministerial-level employee responsible for performing “limited and well-defined tasks.” Id.

This is significant because binding precedent tells us that, insofar as such an employee exercises her First Amendment rights during an election, the governmental interest in political loyalty cannot justify her termination in the aftermath.⁵ Indeed, under Elrod and Branti, the governmental interest in political loyalty can support the discharge of a public employee only if political loyalty is an appropriate requirement for that employee‘s job. See Terry, 866 F.2d at 378; see also Epps v. Watson, 492 F.3d 1240, 1245 (11th Cir. 2007). And political loyalty is not an appropriate requirement for positions that involve “limited objectives and defined duties and [that] do not require those holding them to function as the alter ego of the [elected official] or ensure that the policies and goals of the office are implemented.” Terry, 866 F.2d at 378.⁶

The majority‘s decision to rely only on the formal statutory job description of the deputy clerks to uphold Ms. Underwood‘s termination has the effect of burdening Ms. Underwood‘s First Amendment rights beyond that which the Constitution allows. This is precisely the kind of danger that the Supreme Court warned about in Garcetti. See 547 U.S. at 424-25, 126 S.Ct. at 1961-62.

Unlike the majority, I do not think that we can ignore the facts regarding the scope of Ms. Underwood‘s actual duties, and in view of those facts, I think Ms. Underwood should be allowed to proceed to trial with her claim. Because the majority refuses to let her do so, I respectfully dissent.

Emmet J. Bondurant, Jason James Carter, Michael A. Caplan, Frank M. Lowrey, IV, John H. Rains, IV, Bondurant, Mixson & Elmore, LLP, Atlanta, GA, Lisa L. Heller, Christopher William Madel, Randall Tietjen, K. Craig Wildfang, Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, for Plaintiff--Appellant.

Karen B. Bragman, Kevin B. Getzendanner, Heather Smith Michael, Arnall, Golden & Gregory, LLP, Atlanta, GA, Harry N. Niska, Kelly K. Pierce, Jeff I. Ross, Ross & Orenstein, LLC, Minneapolis, MN, for Defendants--Appellees.

Moses Silverman, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City, for Loan Syndications and Trading Ass‘n, Managed Funds, Ass‘n, and Securities Industry and Financial Markets Ass‘n, Amici Curiae.

Alice M. Stoeppelwerth, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, for The Credit Roundtable, Amicus Curiae.

ON PETITION FOR REHEARING

Before DUBINA, Chief Judge, and TJOFLAT, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges.

BY THE COURT:

The decision of the district court is affirmed by an evenly divided court. The opinion of the panel remains vacated. United States v. Geders, 585 F.2d 1303, 1306 (5th Cir. 1978) (en banc) (“[T]he court en banc is evenly divided; therefore the judgment ... of the district court is affirmed by operation of law.”);¹ see id. (indicating that, if district court judgment is affirmed by operation of law, the panel opinion remains vacated); see also Reshard v. Britt, 839 F.2d 1499 (11th Cir. 1988); United States v. Sigma, Int‘l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (en banc) (noting that when panel opinions are vacated they “are officially gone,” and “are void,” and none of the statements made in them “has any remaining force and cannot be considered to express the view of this Court.”).

AFFIRMED.

Notes

In (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.

Of course, “employees may always be discharged for good cause, such as insubordination or poor job performance.” (plurality opinion). However, Ms. Harkins admitted for the purpose of her summary judgment motion that she fired Ms. Underwood because Ms. Underwood chose to exercise her First Amendment right to be a candidate. Majority Op. at 1339.

In Terry, we clarified that “[a]lthough it can be said that each job in [an] office implements the policies of the office,” political loyalty is not an appropriate requirement for positions that involve “limited and defined roles.” .