*1 plan term which guessing this circuit claim, deny the takes plan the time the the to enforce next refuse will in this “reasonable to be period the found Noe ERISA tension” it “creates basis light case” th[at] and general Id. at policies. review is a ERISA under “a suit fact evidentiary proceed- an proceeding, to White judgment the reverse I would which appeal, an thus, “is like and ing,” in favor judgment entry of remand and filed within be must courts federal the from dissent respectfully Life. I Sun appealed judgment days of 30, or 60 contrary decision. majority’s Blaske, 131 875; accord Id. at from.” limita- identical (holding reasonable). to be period tions contrary hand, two other
On wholly majority are by the cited
decisions ante, In refus- See
unpersuasive. when regarding plan terms to enforce
ing begins, period limitations applicable Smith, Greg SMITH; Mary Lou the federal rely on simply decisions both Plaintiffs-Appellants, accrue claims ERISA rule that default denied, benefits a claim when discussing whether FRYE, as much so N. without Andrew Honorable adopt plan to allow would Defendant-Appellee. rule Jr., Wolfe Miller See period. shorter reasonable 06-1801. No. 516, 520- Co., Ins. Fortis Benefits & Cir.2007); v. Provident (3d Price Appeals, Life Court States United 986, 988 Co., 2 F.3d Ins. Accident Circuit. Fourth surprising It is therefore 12, 2007. Argued: March cursory men- only majority makes that the ante, at 250. 18, 2007. May decisions. these Decided: tion II. plain- us before plan sum, ERISA brought action be civil requires
ly White’s date years three
within lawno Because due. of Claim
Proof a limita- adopting from plan
prevents peri- the default than shorter period
tions requires precedent
od, Supreme long so enforced plan period
that the here period is reasonable. even— generous
eminently reasonable — too a suit prevent constructed well
and un- the events removed
temporally refuses majority it. That
derlying no doubt will troubling it is
enforce participants administrators plan
leave *2 incum- clerk of circuit
position Appellants colleague. bent, Ms. Smith’s 42 U.S.C. under action brought their violation alleging § *3 rights. Amendment com- the dismiss moved Frye Judge a claim to state failure upon based plaint immunity. qualified defense the and Mr. that contended further Frye Judge court The district standing. lacked Smith that concluding complaint, dismissed a claim be- to state failed had Ms. Smith First exercise did not discharge to her prior rights for want failed claims Mr. Smith’s and standing. Karlin, Mor- Norman Allan ARGUED: failed Smith that Ms. holdWe Appellants. for Virginia, West gantown, her firing violated her claima state Lyons, Hedges & Byrne, Hedges, M. John associational speech First Appellee. for Virginia, West Morgantown, lacks Mr. Smith hold and also rights Byrne, Lyons, J. Teresa BRIEF: ON affirm. therefore standing. We Vir- West Morgantown, Lyons, & Hedges Appellee. for ginia, I. of the MOTZ, the Clerk NIEMEYER, as and hired was
Before County, West Mineral Judges. DUNCAN, Magistrate Circuit Clerk November Virginia Judge opinion. by published Affirmed will at the serves Magistrate Court in which opinion, wrote DUNCAN Judge Chief pleasure and Judge concurred. Judge NIEMEYER Vir- of West Circuit Judicial Twenty-First opinion separate Twenty- wrote MOTZ judges circuit Two ginia. in the concurring concurring part B. Jor- Philip Circuit, Judge Judicial Jr., judgment. Frye, N. Andrew dan, Judge Jr. and based Judge Chief serving as turns take OPINION When rotation. two-year regular aon was hired, Jordan Judge first Smith Judge: DUNCAN, Circuit January On Judge. Chief serving (“Ms. Smith Mary Lou Appellants From role. assumed 2003, Judge (“Mr. son,' Greg Smith Smith”) her appar- hiring, Smith her time dismiss- court’s Smith”), appeal district re- adequately, job her performed ently N. Andrew suit of their al perform- about complaints ceiving Circuit Frye”), Chief (“Judge Frye, Jr. ance. Cir- Judicial Twenty-First Judge for adult 2004, Ms. Smith’s January On Frye dis- Virginia. West cuit office for the run Smith, filed son, Mr. em- her at-will Smith charged At Clerk. County Circuit of Mineral clerk after magistrate as a ployment incumbent by an held time, the office a candidate filed as Mr. Republican whom Mr. Smith would chal- Frye, No. 2-.06-CV-14, 2006 U.S. Dist. lenge in the Republican primary. Several (N.D.W. LEXIS 39909, at *4 Va. June later, days Judge Frye told Judge 2006). Jordan The designee of the Administrative that he intended to fire Ms. Smith because Director affirmed the examiner’s report, of her candidacy. son’s Judge Frye ex- and the Supreme Court of Appeals denied pressed concerns potential over conflicts of Ms. Smith administrative review. interest and proper functioning of the After exhausting Ms. Smith’s adminis- judicial local system created by the combi- review, trative both she and Mr. Smith nation of Ms. Smith’s employment and her filed suit in federal court alleging that son’s candidacy. Judge Frye terminated Judge Frye violated their First Amend- Ms. Smith’s employment on February 5, ment *4 rights. The Smiths allege that Judge Frye fired Ms. Smith because he personnel policies and procedures believed that Ms. Smith supported her governing the Virginia West judicial sys- son’s candidacy, and not that of the incum- tem, as promulgated by the West Virgi- bent circuit clerk. Although the Smiths’ nia Supreme Court of Appeals, grant an allegations have been both vague and employee dismissed without cause a post- evolving, they do allege not that Ms. Smith dismissal hearing to determine if the dis- demonstrated her support through expres- missal was actually due to reasons imper- activity sive or through association. Judge missible under federal or state law. See Frye brought a Federal Rule of Civil Pro- 6.2(E),(G) Sections of the West Virginia 12(b)(6) cedure motion to dismiss Ms. Judicial System Personnel (effec- Manual claim, Smith’s and a motion to dismiss Mr. tive Jan. and as subsequently Smith’s claim for lack of standing. The amended), at J.A. 32-33. In cases, such district court granted both motions, and the Administrative Director of the Su- we now review the Smiths’ appeals from preme Court of Appeals or his designee the district court’s decisions on each in appoints a hearing examiner, who in turn turn. evidence,
takes makes findings, and sub- mits such findings and II. recommendations back to the Administrative Director. The We first address Ms. Smith’s claims that Administrative Director must then affirm the district court erred in dismissing her or reverse the hearing report. examiner’s claims 12(b)(6). under Rule We review de If the Administrative Director finds novo a district court’s dismissal under Rule against the employee, employee 12(b)(6), Mylan Labs., Inc. v. Matkari, 7 request an administrative review by the (4th F.3d Cir.1993), and accept Supreme Court of Appeals, which may all allegations in Ms. Smith’s complaint as grant or deny the request, or uphold or true, Republican Party N.C. Martin, reject the dismissal. Any decision by the There- Supreme Court Appeals is final. fore, we assume that Judge Frye fired Ms.
In case, this Ms. Smith Smith because he exhausted the believed she supported administrative Mr. review Smith’s candidacy available to her. the race for cir- The hearing cuit clerk. examiner found that Ms.
Smith “would not have been discharged had her A. son not become a candidate for clerk, circuit but that her discharge did not argues Smith that the district court violate state or federal law.” Smith v. erred in relying upon cases involving alleg- (internal citations at 316 Ridpath, pub- taken retaliatory actions edly omitted). first Because quotations of their content on the based employees lic that requires McVey test addressing prong on cases than rather speech as a out spoken ... have employee In- “public rights. associational employees’ public concern,” public a matter of ... on citizen concluded court deed, the district found Ms. court id., district she said allege does Smith spoken had not she failed because her claim son’s support anything did find way. We she herself allege expressed (i.e., does candidacy on this analysis court’s in the district rights) error Amendment First exercised agree issue,1 law. but we a matter failed claim her her claim that ap- review also result, we must the district reaching asso- First test, circuit’s our McVey firing violated so-called plied if a retalia- We consider rights. ciational to determine test three-prong an em- violates below. action employment tory rights. ployee’s B. Marshall Bd. Governors
Ridpath Cir.2006); her termination argues that Univ., 447 F.3d *5 the even in 271, 277-78 the violated 157 F.3d Stacy, McVey v. Amend of First the exercise of absence Cir.1998). Su upon the relying rights, speech ment have must employee First, public the Burns, v. in Elrod decisions Court’s preme employee, citizen, as an not as a spoken 2673, 547 L.Ed.2d 49 347, S.Ct. 96 Second, 427 U.S. concern. public of matter on a 507, Finkel, U.S. 445 v. (1976), and Branti expression in the interest employee’s the (1980), and 574 1287, L.Ed.2d 63 100 S.Ct. em- the outweighed have must at issue Judge asserts She progeny. their effective providing in interest ployer’s post at-will dismissing her Frye’s public. to the services and efficient he believed clerk magistrate as a sufficient have Third, must there offends campaign her son’s supported she protected the between nexus causal politically-motivat on prohibition Elrod’s employment retaliatory the speech and firings.2 ed action. 686 L.Ed.2d 671-74, 128 S.Ct. 114 Furthermore, make cannot government-as-employer’s (1994). the Given expected or perceived on based McVey claim behavior, in- workplace regulating in is, a First interests rest she cannot speech. That instances, recognizing in some cluding speech speech on retaliation on employees based not action engage in if of a cause would perceived she ill- an seem would McVey spoken yet speech prong of The second terminated. established balance in to the interest employee’s disturbance "the advised requires that test test, an at-will in especially outweigh[ McVey ] ... at issue in expression effective providing setting. employer’s interest Ridpath, 447 public,” services efficient concurring colleague's to our response In omitted). (internal quotations 316 at accept we again that emphasize opinion, we free dealing with the opinions recent two readWe as true. allegations Smith's Supreme employees, public speech of well, we must indeed liberally, as them in government’s has underscored arguments all; Smith's at analyze them Garcetti balancing test. in this terest appeal that on extent to such mutated have — U.S. -, Ceballos, S.Ct. 126 on focusing, appears, it current iteration — ("A govern 1960-62, 689 L.Ed.2d 164 expres- than rather association freedom to restrict discretion entity has broader ment court. by the district addressed sion—was employ role as in its it acts when speech complaint, none the Smiths’ than Churchill, Other U.S. 511 er....”); Waters line of es places
The Elrod-Branti
cases
on freedoms of belief and associa-
Elrod,
not,
tion.”
employee may
U.S. at
public
tablishes
(plurality opinion).
patron-
Because
with the First
Fourteenth
consistent
age forces employees to choose either to
Amendments,
politi
be terminated for her
a particular party
affiliate with
or risk
Elrod,
cal
or lack thereof.
losing
jobs,
their
it compels speech and
358-59,
(plurality
to find a public constitutional basis for such an at- the office at Id. campaign.” into his completely self] circuit, cases Elrod In this scenario. rod election, the winning the After archetypes: 547-48. primary into two fallen have 548. We Id. at plaintiff. the fired is fired being sheriff person the (1) in which cases of sum- grant court’s or the district party political a reversed with actively associated government of the be so in favor judgment (or mary actively chooses faction Amend- making the plaintiffs the associated) the individual employer and office, allegiance seeking political person claim, finding that is a firing decision ment 544, 545- Vernon, job requirement appropriate v. Knight e.g., which Cir.2000); cases therefore (4th plaintiff the jailer and for a fire officials at appointed Elrod. Id. newly elected under a claim stated had political a during rivals their supporters 545. Grant, F.3d transition, v. e.g., Sales Knight plaintiffs that the sense In the v. Cir.1998); Jenkins 768, 770-74 successful sheriffs the firing came after (4th Cir. 1156, 1159 Medford, 119 similar is also Knight campaign, Super Bd. County Lee v. 1997); Cooper into squarely fit facts whose cases 631240, at 98-2083, WL visors, No. involving those paradigm4: second *2-9 at LEXIS U.S.App. *1-3, 1999 during po- can occur housecleaning 1999) In (unpublished). Aug. Cir. Medford, Jenkins transition. litical presented Branti and Elrod deed, both of two banc, firings considered, en we latter within fitting scenarios factual sheriff North Carolina by a deputies 350-51, Elrod, at category. support failed deputies 2673; 96 S.Ct. Branti election. in an sheriff supported had deputies There, the fired some the facts of review A brief candidate, when winner losing analyz- line is useful Elrod in the cases depu- them seated, replaced he first We before us. now facts ing the campaign. his him and loyal ties initial representing case consider “in North determined Ultimately, we above. described pattern fact archetypal is sheriff deputy Carolina, the office Vernon, former Knight The plaintiff therefore concluded policymaker” aof her, fired who sheriff sued jailer, *7 sheriffs deputy North Carolina act of was an termination claiming her reasons political for lawfully terminated be Amend- of violation patronage at Id. Elrod-Branti. exception as Knight, In 545. at F.3d ment. 1164. for reelection running sheriff firing Jenkins, we deciding after year One his promote meetings to staff used involving post-elec- a case again reviewed employees urging campaign, reelection affiliation political termination tion signs their his money, display contribute in Sales plaintiffs The Grant. Sales events. campaign attend yards, appointed been had who Democrats were participate did plaintiff Va. Lynchburg, registrars assistant When efforts. reelection the sheriffs body after appointing a local They sued security, job about concern expressed follow- reappointed be not to them caused [her- “throw her to instructed the sheriff case, punishment type of in the second types of two Indeed, between the lines fir- to the is incidental employee fired of the distinct. always bright and are not cases Elrod loyal reward real motivation act However, ing official’s type, the official's first in the him. employ- their fired supporters punishment a to be seems nonaffiliation, where- affiliation or ee for her ing the new, election Republican gov- merits, the facts fall consistently into one ernor. 158 774. We held that the patterns two we have described. plaintiffs were entitled to a trial on their By contrast, recognizing Ms. claims. Id. at 770. Smith’s claim would lead far us afield.5 In each of the cases, above-cited even those in
An assessment of decisions of our sister
which
plaintiffs
claim ultimately failed,
circuits interpreting Elrod reveals the
there is a clear and direct connection
same
patterns
fact
described
See,
above.
among the supervisor’s
political
own
asso
e.g.,
Martin,
Allen
460 F.3d
ciation, that of the terminated employee,
(7th Cir.2006) (affirming summary judg-
and the adverse employment action.
ment in
government
favor of
officials when
There is no such connection
plaintiff
here.
was terminated during a re-
Smith alleges no affiliation with her son’s
gime change from position
for which
candidacy, unlike the fired deputies in Jen-
political affiliation
anwas
appropriate cri-
kins who supported the losing candidate in
terion); Borges Colon v. Roman-Abreu,
the sheriffs race. See
unlike all employment, at the time the the context of at-will such a was terminated was set to Republican primary adequate belief is more than an reason field for son and the incumbent employee. included her dismiss an an and not after election circuit clerk Extending Ms. Elrod to Smith’s applica- scenario. The typical Elrod require claim would to undertake courts rationale—protecting public of Elrod’s tion subjective fact-finding inquiries gov into is political for employees whom ernment officials’ actual motivations from job qualification legitimate not a employment to a making at-will decisions political their respect to coercion extent than and in contexts in greater on these facts. compelling far liefs—is less court has never Such which this ventured. detachment the decision-maker’s Given exercise, facts, an on these attenuated con- political process play, from the topple would the Elrod-Branti balance in- Judge Frye’s decision was clusion that rights [public “[F]irst [AJmendment expressive for punish Smith tended and the need efficient and employees] compel or to political affiliation conduct or Ter delivery of public effective services.” requires an or affiliation addi- her conduct Cook, Cir. ry leap are unwill- tional inferential which we 1989). Supreme cau As the Court has ing to make. tioned, “if employee’s private political Indeed, very differences between discharge with the beliefs would interfere and those in cases circumstances here duties, his public his First Amendment sug- patterns fact within the usual Elrod required yield to rights constitutionally Frye had gest maintaining gov State’s vital interest dismissing Ms. Smith. valid reasons efficiency.” ernmental effectiveness as true at accept we of course Although Branti, S.Ct. 1287. U.S. at litigation Ms. Smith’s stage that bal- We are disinclined disturb fired allegation that she was Judge Frye dis- ance on these facts. Judge Frye supported that she believed employ- her missed Ms. at-will Smith candidacy than that of her son’s rather clerk, a position court magistrate ment as clerk, allegation such an incumbent circuit protections unclear Elrod’s to which is itself, necessarily, by state a does not cam- heat his own apply,6 neither Rather, Amendment claim under Elrod. house-cleaning. victory paign during nor sup- Judge Frye’s belief that Ms. Smith alleges We not find that do lead candidacy might have ported son’s here, and therefore constitutional violation that, in a small Judge Frye to conclude of her affirm the district court’s dismissal working office in which Smith was claims. clerk, po- with the incumbent circuit would hinder the
tential conflict of interest
III.
judicial sys-
administration of the
efficient
argument
now turn Mr.
Judge Frye’s
We
undisputed
It is
tem.
improperly dis-
colleague
in the state administra-
the district
testified
*9
immunity.
"clearly
qualified
is
estab-
uncertainty
It
regarding whether
6. The
protect-
position is
Smith’s
position
type
entitled to
lished"
Smith's
one,
political
than one for which
protections provides
ed
rather
another reason
Elrod's
that,
legitimate
requirement.
job
is a
if
could state a claim
even Ms. Smith
Jenkins,
Elrod,
F.3d at 1162 n.
Judge Frye
would be entitled
under
him
complaint as to
for lack of
he
responsible
missed the
cause
felt
for his mother’s
standing. “A district court’s
discharge.
dismissal for
Frye responds
standing,
lack of
and therefore lack of
legally cognizable injury flowing from Ms.
jurisdiction,
legal ruling
is a
that we re- Smith’s
injury
dismissal is an
to her for
Park,
view de novo.”
Tail
Inc.
White
standing.
which Mr. Smith lacks
We ad-
Stroube,
dress each
arguments
of Mr.
in
Smith’s
turn and conclude that he does not have
It well
is
settled that under Article
standing to assert the instant claims.
Constitution,
III of the United States
plaintiff must establish that a “case or
A.
controversy” exists “between himself and
In support
position
the defendant”
of his
and “cannot rest his claim
that his
to relief
legal rights
rights
by
were
interests of
chilled
Seldin,
parties.”
third
Judge Frye’s
mother,
Warth v.
discharge
of his
Mr.
490, 498-99,
95 S.Ct.
injury
published
student
in
fact—an
letters
legally
invasion
(a)
the school’s
protected
newspaper criticizing a profes
interest which is
concrete
(b)
sor
grading
and his
particularized;
process
after
had
actual or
imminent,
conjectural
complete
unable to
exam
hypotheti-
Second,
migraine
cal.
of a
publishing
there must be a causal
headache. After
letters,
injury
connection between the
and the
student received a failing
complained
grade. Later,
conduct
injury
of—the
permitted
student was
fairly
to be
...
to the chal-
only
trace[able]
retake the exam but
provided
lenged
defendant,
action of the
days’
and not
three
notice. We held that to dem
...
independent
the result
[of]
ac-
injury
fact,
onstrate
it was
sufficient
tion of
party
some third
not before
plaintiff
in that
case
show that her
Third,
court.
likely,
op-
must be
First Amendment activities had been
posed
merely speculative,
chilled and that she need not show she
injury
by
will be redressed
a favorable
ceased those
altogether
activities
in order
decision.
to state a
action.
Id.
500. A
chill results “if the
allegedly
defendant’s
Lujan Wildlife, 504 U.S.
Defenders of
retaliatory
likely
conduct would
deter ‘a
case,
all,
family
fairly
at
but
a
against Mr. Smith
done to
member absent
taken not
circumstances,”9
his mother.
party,
a third
against
rather
and noted that
particular
authority
sup-
to no
Mr. Smith cites
1983,
Smith’s,
§
like
claims under
Mr.
are
speech of
his
that further
ports
contention
root[s,]
Smith v.
“at
...
[their]
tort[s].”
exercised
person
a
who
39909,
Frye, 2006 U.S. Dist. LEXIS
at *12.
(here,
filing
his candi-
Mr. Smith
rights
Mr.
now contends that
the district
by
allegedly
chilled
dacy) might be
principles
was
court’s reliance
tort
mis-
(here,
firing
retaliatory action
placed.
Smith)
person.7
upon a different
exacted
We, however,
find the district court’s
circumstances of
Quite simply, under the
entirely ap-
principles
reference
tort-law
case,
action
employment
an adverse
this
v.
this instance. See Smith
propriate
a con-
Ms. Smith does not create
Wade,
461 U.S.
103 S.Ct.
particularized violation of
crete and
(1983)
§
(noting
L.Ed.2d 632
See
Mr.
protected right of
Smith’s.
legally
species
“was
to create a
of tort
intended
560, 112
Lujan, 504 U.S.
at
S.Ct. 2130.8
Supreme
liability” and that
B.
...
of torts
to the common law
“look[s]
carry
purpose
policy
...
out the
argu
Mr.
respect
With
Smith’s
(internal
omitted)).
quotations
the statute”
injury in the form of
that he suffered
ment
with the district court that
agree
“[a]l-
We
Judge Frye termi
distress after
emotional
an adult son to collect for emotional
lowing
mother,
applied
the district court
nated his
resulting
humiliation
from
damages and
principle
tort
venerable common-law
employ-
discharge
his
cannot collect for emotional dam-
mother’s
that “one
fact,
public
Supreme
dacy for
office cannot immunize his
one
Court decision
In
least
employ-
chill
the downside of at-will
on whether such an indirect
mother from
casts doubt
is,
firing
legally
give
to cause
action. See
ment. That Ms. Smith’s
could ever
rise
a
all,
1, 10-11,
reasons,
Tatum,
permissible
or for no
92 S.Ct.
reasons
v.
408 U.S.
Laird
Laird,
(1972).
gives
no
Mr. Smith’s First
rise to
claim that
50, 109
S.Ct.
Smith.
Judge Frye told another judge
I.
that “he wanted to fire Ms. Smith because
her son had filed to run for circuit clerk”
A.
and he was “angry at” her for this reason.
purpose
“[T]he
12(b)(6)
aof Rule
motion Prior to this time “no complaints had been
is to test the sufficiency of a complaint.”
by anyone
made
about Ms.
per-
Edwards
City
Goldsboro, 178 F.3d
formance as
the Magistrate Clerk;
to the
(4th Cir.1999).
12(b)(6)
A
motion contrary she
widely
respected by ev-
*12
firing of
the
“prohibits
also
Amendment
Ms.
worked.”
she
with whom
eryone
that
reason
solely for the
employees
public
Frye
Judge
that
alleges
complaint
Smith’s
particular
awith
not affiliated
they [are]
son, Greg
her
“because
her
discharged
v.
Knight
or candidate.”
party
political
the incum-
against
to run
Smith, had filed
Cir.2000)
Vernon,
548
214
Party
Republican
in the
Clerk
Circuit
bent
added)
(internal
quotation
(emphasis
the
and because
primary
defendant
omitted).
exception to
only
The
marks
son,
her
supported
Ms. Smith
that
lieved
moti-
politically
bar
the Elrod-Branti
(empha-
clerk.”
circuit
incumbent
the
not
when an
occurs
decisions
personnel
vated
added).
sis
af-
party
that
“can demonstrate
employer
allega-
these
whether
is
question
The
ap-
is
allegiance]
political
[or
filiation
favorable
most
light
tions,
the
viewed
the effective
for
requirement
propriate
Smith,
a First
state
Ms.
involved.”
public
the
office
of
performance
they do.
I believe
claim.
100
Branti,
at
S.Ct.
445 U.S.
discharge an
may
employer
public
Thus a
B.
or
political beliefs
of her
because
employee
dem-
employer “can
if
only
the
allegiance
consti
association
belief
“[P]olitical
re-
“appropriate
is an
that
this
onstrate”
protected
activities
those
core of
the
tute
of-
“public
employee’s
quirement” for
v.
Elrod
Amendment.”
First
(citing
549
at
Knight,
fice.”
2673, 49
347, 356, 96
Burns,
S.Ct.
427 U.S.
1287)
518, 100 S.Ct.
Branti,
that
(1976)
For
(plurality).
547
L.Ed.2d
omitted).
(internal
marks
quotation
that
has held
reason,
Supreme
that
case,
the dis
Ms. Smith
In
prohibits
this
First
“the
be
[he]
“because
fired her
Frye
solely
Judge
because
employee
public
aof
missal
son,
her
supported
[she]
that
Branti
lieved
beliefs.”
political
private
[her]
of
upcoming
in the
clerk”
circuit
incumbent
Finkel, 445 U.S.
v.
Certainly,
primary.*
Republican
(1980).
First
1287, 63 L.Ed.2d
assumption.”
*
Es-
an erroneous
was based on
it reads
majority
that
insists
Although
Page, 257
City
ex rel. Amos
Amos
"liberally,” ante at 267-68
tate
complaint
Smith's
Cir.2001) (allowing
majori-
clearly
to do so. Thus
fails
n.
it
it
complaint fails because
deceased
discriminated
ty
city
that
contends
that
claim
Native, American,
or
views
Smith’s
allege "what Ms.
does not
it
he
believed
because
fact,
noted
white).
as
were."
are or
And
actually
though he was
even
Frye
Judge
above,
alleges that
complaint
that she
to demonstrate
Smith had
if Ms.
even
believed
[he]
"because
discharged Ms.
son, surely
fact
support her
actually did
son,
the incum-
her
supported
[she]
allega-
with the
prove[n] consistent
“could be
light most
in the
Read
clerk.”
bent circuit
Hishon,
U.S. at
complaint.
in the
tions”
Smith,
allegation asserts
to Ms.
favorable
best
in the
When read
S.Ct.
elected)
(that
should
her son
“view”
both a
alleges
Smith,
complaint
her
light for Ms.
(with
son’s candida-
her
“affiliation”
and an
the state to
power of
used
complaint
faults
majority also
cy). The
political affiliation
her
punish Ms. Smith
“Judge Frye
allege that
its failure
being "attenuat-
than
Rather
views.
and/or
ed,”
or affiliation.”
beliefs
Smith's]
of [Ms.
aware
of the
id.,
heart
sounds in
allegation that
surely Ms. Smith's
Id. But
Bd.
Virginia State
West
Amendment.
“be-
what he
her because
Judge Frye fired
Barnette,
U.S.
Educ.
suffices.
to be
and affiliation
her views
lieved”
(“If
there is
L.Ed. 1628
S.Ct.
wrong
about
Ftye
have
constella-
constitutional
in our
star
fixed
affiliation;
if
fired
but
he
beliefs
Smith’s
official,
petty, can
high or
tion,
it is that
would
reason
for an unconstitutional
her
politics
be orthodox
shall
prescribe what
“[A]lleged dis-
action.
a cause
have
still
opinion....”).
matters
...
other
less malevolent
is no
crimination
Smith could prove a “set of facts ... con-
us
to which category Ms.
posi-
allegation[
sistent
[this]
]” that would tion belonged.
If Ms. Smith’s duties were
entitle her to relief for a violation of her
sort,
ministerial
her political beliefs
Hishon,
First Amendment
rights.
467 and affiliations were plainly irrelevant
Of discovery might established law. produce evi- Our determina- dence that tion of Judge Frye whether discharged clearly law is established Smith, as the “must be majority posits, in light ante undertaken 266, of the specif- ic to avoid context ease, disruption judicial to the not as a broad system. general Although Katz, proposition.” v. Smith’s complaint Saucier 533 194, 201, that states U.S. circuit 121 2151, clerk “does S.Ct. 150 have L.Ed.2d (2001). any 272 supervisory or right “[T]he other direct employ- allegedly violated ment relationship must be defined with the at the Magistrate appropriate level of Clerk,” specificity discovery may before a court reveal can determine if proper it was functioning clearly judicial system established.” Wilson v. Layne, required Ms. Smith 526 U.S. and the incumbent 119 S.Ct. circuit (1999). clerk to work closely L.Ed.2d 818 together. “[T]he If focus is on whether evidence demonstrates [official] had fair notice that Frye feared [his] that Greg conduct was unlawful.” Smith’s candidacy v. Brosseau Haugen, would disrupt relationship, he S.Ct. (cid:127) well have (2004). violated no L.Ed.2d 583 provi- constitutional sion in discharging Ms. Smith. However, The most apposite Supreme cases, Court no evidence yet supports this conclusion. Branti, Elrod address po- traditional Similarly, although some clerks have litical patronage practices quite unlike purely ministerial and administrative Smith’s allegations. And as the majority duties, others make policy or enjoy a confi- persuasively explains, our court and others dential relationship to their superiors, and have usually applied the First Amendment as the majority acknowledges, ante at 268 principles Elrod and Branti articulated 3,n. nothing in the record to date informs to patronage situations. See ante 268-70. a case direct- be need not course, there Of Plaintiff-Appellant, DARDEN, William clearly estab- the law ly point purposes. immunity qualified lished v. Creighton, Anderson PETERS, Register of Marybeth (1987); L.Ed.2d Defendant- Copyrights, Harris, 356-57 Buonocore Appellee. But found, case single cited, have not we No. 06-1177. February 2004 court, prior in which Appeals, States United discharge), had (the of Ms. date Circuit. Fourth That to hers. similar a claim recognized had allowed is, 1, 2007. Argued: Feb. *14 discharge violated May Decided: clearing po- was employer not because punishing supporters own for his sitions but activity, her political employee
an “angry” at was employer
because candidacy her relative’s due
employee part, on her any conduct
and, absent supported she “believed” he clerk.” circuit
relative, incumbent “not the firing reason an unfair may be
This at-will was an but, her for fire Frye could Judge
employee, except reason
reason all— that she I believe reason.
unlawful a claim out make sufficient facts unlawful; given but firing effect, I cannot authority to that
dearth “fair
conclude Frye is such, As of this.
notice” immunity. qualified
entitled majori- reason, agree I
For the dismissal uphold we must
ty that
complaint.