Filed:   September 11, 1997


                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT



                             No. 96-1650
                           (CA-95-126-1-T)



Steven Douglas Jenkins, et al,

                                             Plaintiffs - Appellees,

         versus

Bobby Lee Medford, etc.,

                                              Defendant - Appellant.




                              O R D E R


    The Court amends its opinion filed August 7, 1997, as follows:

    On page 2, section 2, lines 5-6 -- the sentence is corrected
to read "Judge Motz wrote a dissenting opinion, in which Judge

Hall, Judge Murnaghan, and Judge Michael joined."

    On page 33, second full paragraph, line 3 -- the cross-

reference is corrected to read "Majority op. at 15."

                                      For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                     Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVEN DOUGLAS JENKINS; DAVID CHRIS
BOSSARD; WILLIAM MARTIN BUCKNER;
ROBERT CALVIN DAVIS; ELMEDA MILLER
FOSTER; JIMMY LYNN HUNGERFORD;
LINDA COOK MCDANIEL; RANDY LEE
MOSS; SANDY HOGLEN MOSS;
KIMBERLY DIANN SHELTON,
Plaintiffs-Appellees,

v.

BOBBY LEE MEDFORD, Individually and
in his official capacity as Sheriff of
Buncombe County, North Carolina,
                                                            No. 96-1650
Defendant-Appellant,

and

RELIANCE INSURANCE COMPANY, INC., a
Pennsylvania Corporation,
Defendant,

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
SOUTHERN STATES POLICE BENEVOLENT
ASSOCIATION, AMERICAN CIVIL LIBERTIES
UNION OF NORTH CAROLINA LEGAL
FOUNDATION, INCORPORATED,
Amici Curiae.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-95-126-1-T)

Argued: December 3, 1996

Decided: August 7, 1997
Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting en banc.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Russell wrote
the majority opinion, in which Chief Judge Wilkinson, Judge Wid-
ener, Judge Niemeyer, Judge Wilkins, Judge Hamilton, Judge Luttig,
and Judge Williams joined. Judge Ervin wrote a dissenting opinion.
Judge Motz wrote a dissenting opinion, in which Judge Hall,
Judge Murnaghan, and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: William Alfred Blancato, BENNETT & BLANCATO,
L.L.P., Winston-Salem, North Carolina, for Appellant. C. Frank
Goldsmith, Jr., GOLDSMITH & GOLDSMITH, P.A., Marion, North
Carolina, for Appellees. ON BRIEF: Tony Seaton, Lee P. Herrin,
Johnson City, Tennessee, for Appellees.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

Bobby Lee Medford ("Medford") was elected sheriff of Buncombe
County, North Carolina, in November 1994. The plaintiffs in this
action were deputy sheriffs, serving as employees. Shortly after his
election, he dismissed several deputy sheriffs, particularly the
plaintiffs-appellees ("deputies") in this case. These deputies filed suit
under 42 U.S.C. § 1983, alleging violations of their rights under the
First and Fourteenth Amendments to the United States Constitution.
They asserted that they were dismissed for failing to support Med-
ford's election bid, for supporting other candidates, and for failing to
associate themselves politically with Medford's campaign. They also
filed a pendent claim under state law.

                     2
Medford responded by filing a motion to dismiss for failure to state
a claim.1 In the brief supporting his motion, Medford asserted, inter
alia, that he was entitled to qualified immunity. The matter was
referred to a magistrate judge, who recommended that Medford's
motion be granted because the deputies had failed to state a claim.
The magistrate judge also recommended that Medford be afforded
qualified immunity.

The deputies objected to the magistrate's report and recommenda-
tion, and the district court declined to adopt it. The district court
denied Medford's motion to dismiss, and also rejected the magis-
trate's recommendation of qualified immunity for Medford. Further-
more, the district court believed that Medford's entitlement to
qualified immunity might rest on factual issues not yet before the
court, and so ruled that "the Court cannot now determine whether
[Medford] is entitled to a qualified immunity defense."

I.

Our first step is to determine our jurisdiction over this appeal. Nor-
mally, a denial of a motion to dismiss is not appealable, because it is
not a final order as contemplated under 28 U.S.C. § 1291. When a
district court denies a motion to dismiss that is based on qualified
immunity, however, the action is a final order reviewable by this court.2
_________________________________________________________________

1 Fed. R. Civ. P. 12(b)(6).

2 Behrens v. Pelletier, 

, 839 (1996) ("[A]n order rejecting
the defense of qualified immunity at either the dismissal stage or the
summary-judgment stage is a `final' judgment subject to immediate
appeal.").

In any event, pendent appellate jurisdiction allows us to review the dis-
trict court's denial of the motion to dismiss. Judge Wilkins recently
established that pendent appellate jurisdiction is appropriate when a sub-
sidiary issue "is (1) inextricably intertwined with the decision of the
lower court to deny qualified immunity or (2) consideration of the addi-
tional issue is necessary to ensure meaningful review of the qualified
immunity question." Taylor v. Waters, 

, 437 (4th Cir. 1996)
(citing Swint v. Chambers County Comm'n, 

, 1212
(1995)).

                    3
The policy underlying the defense of qualified immunity supports our
exercise of jurisdiction at this point. The defense exists to "give gov-
ernment officials a right, not merely to avoid `standing trial,' but also
to avoid the burdens of `such pretrial matters as discovery.'"3 When
a district court denies qualified immunity at the dismissal stage, that
denial subjects the official to the burdens of pretrial matters, and some
of the rights inherent in a qualified immunity defense are lost.4 In this
case, the district court refused to rule on the question of qualified
immunity, reasoning that because Medford had not yet filed an
answer, he had not asserted the defense of qualified immunity. The
district court was incorrect. Qualified immunity may be raised in a
motion to dismiss.5 The district court's refusal to consider the ques-
tion subjected Medford to further pretrial procedures, and so effec-
tively denied him qualified immunity.

II.

We review a denial of a motion to dismiss based on qualified
immunity de novo.6 We accept as true the facts as alleged in the com-
plaint, and view those facts in the light most favorable to the non-
moving party.7 In this case, the complaint and amended complaint
allege the following facts that are relevant to this appeal: on and
before December 5, 1994, the deputies were employed in law enforce-
ment positions in the Buncombe County sheriff's department; Med-
ford ran against Walter Hipps in May, 1994, in the Republican
_________________________________________________________________

We may exercise jurisdiction in this case under either prong of the
Taylor test. At a minimum, the motion to dismiss was "inextricably inter-
twined" with Medford's claim of qualified immunity. See also Jackson
v. Long, 

, 731 (4th Cir. 1996) (concluding that when com-
plaint did not adequately state claim against which immunity could
attach, district court should have dismissed complaint).

3 

v. Forsyth, 

, 526 (1985)). See also
Harlow v. Fitzgerald, 

, 817 (1982).

4 

.

5 See 

6 Hafley v. Lohman, 

, 266 (8th Cir. 1996) (citation omitted).

7 

Medford won that election, and ran for sheriff against the
incumbent, Charles Long, in an election held on November 8, 1994;
during the campaign, Medford promised his supporters either jobs or
promotions in the sheriff's department; the deputies worked for or
otherwise supported Medford's opponents, but always on their own
time, and never at work; each deputy was terminated by Medford on
December 5, 1996, the date Medford took office as the newly-elected
sheriff; Medford made no attempt to assess the abilities of any of the
deputies; and, Medford replaced each deputy with someone politically
loyal to Medford.

The district court ruled that the facts alleged in the amended com-
plaint were sufficient to state a cause of action. Under 42 U.S.C.
§ 1983, a plaintiff must establish three elements to state a cause of
action: (1) the deprivation of a right secured by the Constitution or a
federal statute; (2) by a person; (3) acting under color of state law.8
Medford argues on appeal, as he did in the court below, that he is
entitled to qualified immunity because the deputies have not alleged
a violation of a "clearly established" right; he is immune from suit
under the 11th Amendment to the United States Constitution; and the
pendent state law claim should be dismissed. The deputies assert that
by firing them, Medford deprived them of "their rights to freedom of
association and to political belief, speech and expression, and their
Fourteenth Amendment right to due process of law."9

De novo review allows us to conduct an overall inquiry into the
sufficiency of the complaint to determine whether the deputies have
stated a claim upon which relief may be granted.10 When reviewing
a claim of qualified immunity, we consider whether the plaintiff has
been deprived of a constitutional right. If the complaint shows that the
plaintiff has not suffered such a deprivation, the defendant is entitled
to dismissal of the claim under Rule 12(b)(6).11 These steps help
_________________________________________________________________

8 42 U.S.C.A. § 1983 (West 1994); West v. Atkins, 

, 48
(1988).

9 Amended Complaint, ¶ 36.

10 Brooks v. City of Winston-Salem, 

, 181 (4th Cir. 1996).

11 ACLU of Maryland v. Wicomico County, 

, 784 (4th Cir.
1993).

                    5
"weed out insubstantial § 1983 claims" without subjecting the defen-
dant to the burdens of pretrial preparations.12 We believe the disposi-
tive issue in this case is whether the deputies' dismissals deprived
them of any constitutional right. We therefore turn to an examination
of the applicable law.

III.

Today, we are again asked to determine when a public employee
may properly be dismissed because of political affiliation. Over the
last two decades, the United States Supreme Court has issued four
significant opinions on this issue.13 Despite the Court's guidance,
lower courts have issued "conflicting and confusing" opinions.14 It is
clear, however, that "[a] State may not condition public employment
on an employee's exercise of his or her First Amendment rights."15
Further, "[a]bsent some reasonably appropriate requirement, govern-
ment may not make public employment subject to the express condi-
tion of political beliefs or prescribed expression."16

The deputies' complaint is properly analyzed under the reasoning
developed in Elrod v. Burns17 and Branti v. Finkel.18 The wholesale
dismissal of deputies who campaigned for the losing candidate
reveals that the newly-elected sheriff "elevate[d] political support to
a job requirement."19 This implicates the constitutional analysis of
_________________________________________________________________

12 

v. Gilley, 

, 1793 (1991)).

13 See O'Hare Truck Service, Inc. v. City of Northlake, 

(1996); Rutan v. Republican Party of Illinois , 

(1990); Branti
v. Finkel, 

(1980); Elrod v. Burns, 

(1976)
(plurality opinion).

14 Upton v. Thompson, 

, 1212 (7th Cir. 1989).

15 

(1996) (citing Board of Comm'rs v.
Umbehr, 

(1996); Perry v. Sindermann, 

(1972); Pickering v. Board of Educ., 

(1968); Keyishian v.
Board of Regents, 

(1967)).

16 

17 

.

18 

.

19 Terry v. Cook, 

, 377 (11th Cir. 1989).

                    6
political patronage as developed in the Elrod-Branti line of cases.20 In
1976, in Elrod, the Court declared patronage dismissals unconstitu-
tional, because the practice limited political belief and association,
and therefore violated the First and Fourteenth Amendments. How-
ever, the Court created a narrow exception to give effect to the demo-
cratic process. The Court allowed patronage dismissals of those
holding policymaking positions, reasoning that this exception would,
in part, advance the important government goal of assuring "the
implementation of policies of [a] new administration, policies pre-
sumably sanctioned by the electorate."21

Four years later, in Branti, the Court recognized that the labels
used in Elrod ignored the practical realities of job duty and structure,
and so modified the test: "[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."22 Simply put, Branti modified the test
in Elrod by asking if "there is a rational connection between shared
ideology and job performance."23

A.

This court, in Jones v. Dodson,24 had its first opportunity to apply
the Elrod-Branti exception to dismissals based on campaign activity.
Dodson considered the claims of two Democratic deputy sheriffs,
who alleged they were dismissed by the sheriff, a Republican,
because of their political affiliations and expressions.25 The panel held
_________________________________________________________________

20 

employees are subjected to discipline for the content
of their speech, courts analyze those claims under the Connick-Pickering
line of cases. Joyner v. Lancaster, 

, 22-3 (4th Cir. 1987) (cit-
ing Connick v. Myers, 

(1983); Pickering, 

)).

21 

.

22 

.

23 Stott v. Haworth, 

, 142 (4th Cir. 1990) (citing Savage
v. Gorski, 

, 68 (2d Cir. 1988)).

24 

(4th Cir. 1984).

25 

                    7
that "if [the deputy's] discharge was solely because of his political
party affiliation, it could not as a matter of law be justified under the
Branti test."26 The panel reasoned:

         [W]e do not believe that the duties of deputy sheriffs, no
         matter what the size of the office, or the specific position of
         the power involved, or the customary intimacy of the associ-
         ations of the office, or the undoubted need for mutual trust
         and confidence within any law enforcement agency, could
         be found to involve policymaking related to partisan politi-
         cal interests and to involve access to confidential informa-
         tion bearing . . . on partisan political concerns.27

The panel did not, however, make an explicit inquiry into the specific
role or duties of deputy sheriffs, nor did it explore the relationship
between the sheriff and his deputies, as that relationship affects the
execution of the sheriff's policies.

In Joyner v. Lancaster,28 another panel of this court examined the
claims of a deputy sheriff who was dismissed because he campaigned
on behalf of the incumbent sheriff's opponent.29 Because Joyner
focused on one deputy whose campaign activity caused friction
within the department, the panel applied the Connick-Pickering
analysis.30 Nonetheless, Joyner is instructive because the court specif-
ically examined deputy Joyner's role in the sheriff's department.
Joyner was one of four captains in a department of some 150 depu-
ties. He had only two superiors and was in charge of a squad of 15
deputies. He helped with department planning, and reviewed and
evaluated other deputies.31 Furthermore, Joyner played an important
role in implementing the sheriff's policies, "and he was an essential
link between the sheriff and the deputies whom he supervised."32 The
_________________________________________________________________

26 

27 

445 U.S. at 519, 520 n.14) (internal quotation
marks omitted).

28 

(4th Cir. 1987).

29 

30 

at 21.

32 

                     8
panel recognized that in those circumstances, "mutual confidence and
loyalty are of great importance," and approved Joyner's dismissal.33

In Stott v. Haworth,34 yet another panel addressed politically-
motivated dismissals of public employees. Stott refined the inquiry
courts in this circuit should make when applying the Elrod-Branti
analysis. The court must first determine whether the position held by
the dismissed employee relates to partisan political interests. If the
position does relate to those interests, the court must then examine the
particular responsibilities of the position. When the position at issue
resembles a policymaker, a communicator, or a privy to confidential
information, political party affiliation can be an appropriate require-
ment for effective job performance.35 The position then falls into the
Elrod-Branti exception to the prohibition against political firings.36

Our cases have moved from wholesale pronouncements (Dodson)
to position-specific analyses (Joyner andStott).37 Other circuits,how-
ever, simply refuse to allow deputy sheriffs to pursue the type of
claim at issue before us.38 In reaching the decision to bar these claims,
they have examined sheriff elections and the roles of sheriffs and their
deputies. These circuits have found that sheriffs, as elected officers,
require loyal deputies to help them implement their policies--
"policies presumably sanctioned by the electorate."39
_________________________________________________________________

33 Id.

34 

. Stott involved a wide range of civil service employees,
not deputy sheriffs. We nonetheless find the case useful because of its
application of the Elrod-Branti analysis.

35 

36 

37 This narrowing of the holding of Dodson would also serve to defeat
an assertion that the deputies had a "clearly established" right to contin-
ued employment after the election. Thus, Medford would be entitled to
qualified immunity. See DiMeglio v. Haines, 

, 794 (4th Cir.
1995).

38 Upton, 

; Cook, 

.

39 

.


                    9
B.

In jurisdictions where the sheriff is elected by popular vote, the tri-
umph of one candidate indicates voter approval of the candidate's
espoused platform and general agreement with the candidate's "ex-
pressed political agenda."40 Some candidates gain office by promising
changes in current policy. By choosing a particular candidate to pro-
tect the citizens of the county, the electorate vests in the sheriff broad
discretion to set and implement the policies necessary to carry out his
goals.41 The sheriff owes a duty to the electorate and the public at
large to ensure that his espoused policies are implemented.

Deputy sheriffs play a special role in implementing the sheriff's
policies and goals. The sheriff is likely to include at least some depu-
ties in his core group of advisors.42 Deputies on patrol work autono-
mously, exercising significant discretion in performing their jobs.43 In
the course of their duties, deputies will "make some decisions that
actually create policy."44 The sheriff relies on his deputies to foster
public confidence in law enforcement. Furthermore, deputies are
expected to provide the sheriff with the truthful and accurate informa-
tion he needs to do his job.45 In some jurisdictions, the deputy sheriff
is the general agent of the sheriff, and the sheriff is civilly liable for
the acts of his deputy.46

The circuits which have examined the interplay between the voters,
_________________________________________________________________

40 

.

41 

(drawing parallel between deputy sheriffs and public
prosecutors) (citing Livas v. Petka, 

(7th Cir. 1983)); McBee
v. Jim Hogg County, 

, 839, vacated on other grounds, 

(5th Cir. 1983).

42 

.

43 

.

44 

, 801); 

("[D]eputies are often called upon to make on-the-spot split-second deci-
sions effectuating the objectives and law enforcement policies which a
particular sheriff has chosen to pursue.").

45 

.

46 

(discussing Alabama law).

                    10
the sheriff and his policies, and the role of deputies in implementation
of policy, have concluded that political affiliation and loyalty to the
sheriff are appropriate job requirements. These circuits have held that
the position of deputy sheriff is sufficiently political to allow patron-
age and politically-motivated dismissals under the exception estab-
lished by Elrod and Branti.47

C.

Following the lead of the Seventh48 and Eleventh49 Circuits, we
now consider the specific political and social roles of sheriffs and
their deputies in North Carolina. The North Carolina legislature has
declared that "[t]he offices of sheriff and deputy sheriff are . . . of spe-
cial concern to the public health, safety, welfare and morals of the
people of the State."50 The sheriff is such an important political figure,
the legislature has prescribed a mandatory procedure for filling vacan-
cies in that office: "If the sheriff were elected as a nominee of a politi-
cal party, the board of commissioners shall consult the county
executive committee of that political party . . . and shall elect the per-
son recommended" by that party.51
_________________________________________________________________

47 See 

("[W]e conclude that deputy sheriffs
operate with a sufficient level of autonomy and discretionary authority
to justify a sheriff's use of political considerations when determining
who will serve as deputies."); 

("Under the Elrod-
Branti standard, loyalty to the individual sheriff and the goals and poli-
cies he seeks to implement through his office is an appropriate require-
ment for the effective performance of a deputy sheriff. . . . [A] sheriff
[has] absolute authority of appointment and to decline to reinstate those
who did not support him.") (emphasis added); McBee, 

.

See also Wilbur v. Mahan, 

, 217 (7th Cir. 1993) ("A public
agency would be unmanageable if its head had to appoint or retain his
political enemies . . . in positions of confidence or positions in which
they would be making policy or, what amounts to the same thing, exer-
cising discretion in the implementation of policy.").

48 See Upton, 

.

49 See Cook, 

.

50 N.C. Gen. Stat. § 17E-1 (1996).

51 N.C. Gen. Stat. § 162-5.1 (1996) (emphasis added).

                    11
The North Carolina legislature has also recognized the special sta-
tus of sheriffs' deputies in the eyes of the law:"The deputy sheriff has
been held by the Supreme Court of this State to hold an office of spe-
cial trust and confidence, acting in the name of and with powers
coterminous with his principal, the elected sheriff."52 The sheriff may
not delegate final responsibility for his official duties,53 but he may
appoint deputies to assist him.54 Our circuit and North Carolina state
courts agree that the sheriff can be held liable for the misbehavior of
the deputies.55 Presumably it is for these reasons that the legislature
has made deputies at-will employees, who "shall serve at the pleasure
of the appointing officer."56
_________________________________________________________________

52 

See Gowens v. Alamance County, 

, 340
(N.C. 1939); Cline v. Brown, 

, 449 (N.C. App. 1974)
("The deputy is a representative of the sheriff in his official capacity. . . .
The public generally regards the acts of a deputy sheriff as the acts of the
sheriff himself. The sheriff's position in government vests in him and his
deputies `substantial responsibility for or control over the conduct of
governmental affairs.' This is certainly true where law enforcement and
police functions are concerned. . . . [I]f the deputy's office [is] abused,
it has great potential for social harm and thus invites independent interest
in the qualifications and performance of the person or persons who hold
the position."), cert. denied, 

(N.C. 1975) (citation omit-
ted).

53 N.C. Gen. Stat. § 162-24.

54 

v. Stahl, 

, 872 (4th Cir. 1978) ("[I]llegal con-
duct on the deputy's part could expose the Sheriff to civil liability.
Indeed, in law he occupied a status of alter ego of the Sheriff officially.")
(emphasis in original); Sutton v. Williams, 

, 161-62 (N.C.
1930) ("At common law, if a jailer permitted the escape of a prisoner, . . .
the sheriff had to answer for the default. . . . [N]ow, as a general rule,
subject of course to exceptions, a sheriff is liable for the act or omission
of his deputy as he is for his own.") (citations omitted); Styers v. Forsyth
County, 

, 308-09 (N.C. 1937) (sheriff liable on his surety
bond for acts of deputy; "If there be a nonfeasance or neglect of duty by
the under-sheriff, the sheriff alone is responsible to the party injured
. . . .").

56 N.C. Gen. Stat. § 153A-103(2) (1996).

                     12
IV.

This examination of the role of deputy sheriffs leads us to conclude
that in North Carolina, the office of deputy sheriff is that of a policy-
maker, and that deputy sheriffs are the alter ego of the sheriff gener-
ally, for whose conduct he is liable. We therefore hold that such North
Carolina deputy sheriffs may be lawfully terminated for political rea-
sons under the Elrod-Branti exception to prohibited political termina-
tions. This holding "strikes at the heart of the Elrod-Branti least
restrictive means test which balances First Amendment rights of the
deputies and the need for efficient and effective delivery of public
services."57 Because they campaigned for Medford's opponents, the
deputies in the instant case had no constitutional right to continued
employment after the election, and so have failed to state a claim
under 42 U.S.C. § 1983.

We recognize that this holding conflicts with our holding in Jones
v. Dodson. Dodson was this court's first opportunity to apply the
Elrod-Branti reasoning to patronage dismissal claims brought by
sheriff's deputies. We believe Dodson has handicapped and impeded
law enforcement since it became the law of this circuit. The interven-
ing years and cases since Dodson reveal that sheriffs have been forced
to defend themselves in litigation for dismissing deputies who cam-
paigned against them,58 thus diverting sheriffs' attention from the
important public safety issues in their communities. Additionally, we
believe the Dodson panel misapplied the Elrod-Branti test.

Dodson rested on language in Branti rejecting the "notion that
mutual trust and confidence could only exist between members of the
same political party in an agency of the small size there involved."59
Branti involved the dismissal of assistant public defenders, who were
Republicans, by the newly-appointed public defender, a Democrat.
The Court reasoned that political affiliation was an inappropriate
_________________________________________________________________

57 

.

58 Joyner, 

(North Carolina sheriff); Harris v. Wood, 

(W.D. Va. 1995); Pierson v. Gondles, 

(E.D. Va. 1988); Whited v. Fields, 

(W.D. Va. 1984).

59 

(citing 

n.14).

                    13
basis for dismissal because the primary, if not the only, responsibility
of an assistant public defender is to represent his clients' interests in
controversies with the State. The Court concluded that in serving that
interest, an assistant public defender was not a policymaker or privy
to confidential information related to partisan politics.60

We disagree with Dodson to the extent it suggests that no deputy
sheriff can ever be a policymaker. Instead, the district courts are to
engage in a Stott-type analysis, examining the specific position at
issue, as we have done here today. If the position resembles "a policy-
maker, a communicator, or a privy to confidential information,"61 then
loyalty to the sheriff is an appropriate requirement for the job. We
hold that newly elected or re-elected sheriffs may dismiss deputies
either because of party affiliation or campaign activity. Either basis
serves as a proxy for loyalty to the sheriff.62

We can think of no clearer way for a deputy to demonstrate opposi-
tion to a candidate for sheriff, and thus actual or potential disloyalty
once the candidate takes office, than to actively campaign for the can-
didate's opponent. That is the exact measure employed by Sheriff
Medford in this case.63 The deputies admit that they campaigned on
behalf of Medford's opponents.64 "It was never contemplated that . . .
sheriffs . . . must perform the powers and duties vested in them
through deputies or assistants selected by someone else,"65 and we do
not believe it was ever contemplated that a sheriff must attempt to
implement his policies and perform his duties through deputies who
have expressed clear opposition to him.
_________________________________________________________________

60 

.

61 

.

62 Party affiliation as a proxy for loyalty was noted by the Court in
Branti. "[T]he Governor of a State may appropriately believe that the
official duties of various assistants who help him write speeches, explain
his views to the press, or communicate with the legislature cannot be per-
formed effectively unless those persons share his political beliefs and
party commitments." 

.

63 Amended Complaint, ¶ 32.

64 Amended Complaint, ¶ 26.

65 Tanner v. McCall, 

, 1186 (5th Cir. 1980) (quoting
Blackburn v. Brorein, 

, 298 (Fla. 1954)).

                    14
We limit dismissals based on today's holding to those deputies
actually sworn to engage in law enforcement activities on behalf of
the sheriff. We issue this limitation to caution sheriffs that courts
examine the job duties of the position, and not merely the title, of
those dismissed.66 Because the deputies in the instant case were law
enforcement officers, they are not protected by this limitation.67

We reverse the ruling of the district court and hold the deputies
failed to state a claim. This holding makes it unnecessary for us to
consider whether Sheriff Medford is entitled to qualified immunity.68
We direct the district court to dismiss the deputies' claim. In the
absence of a federal action, the deputies' claim under state law should
also be dismissed.69

For the foregoing reasons, the order of the district court is reversed,
and the case is remanded to the district court for the entry of an appro-
priate order of dismissal.

REVERSED AND REMANDED

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

Ten Buncombe County deputy sheriffs brought this suit against the
newly elected sheriff, Bobby Medford, alleging that he discharged
_________________________________________________________________

66 See 

; Zorzi v. County of Putnam, 

,
892 (7th Cir. 1994) (dispatchers not involved in law enforcement activi-
ties or policy, so political affiliation inappropriate job requirement).

The dissent manifests a misunderstanding of our holding. It applies
only to those who meet the requirements of the rule as we state it, and
does not extend to all 13,600 officers in North Carolina, as the dissent
suggests.

67 Amended Complaint, ¶ 19.

68 

(when reviewing determinations on both a
motion to dismiss for failure to state a claim and a denial of qualified
immunity, courts are "free to decide the case on the most expedient
ground.").

69 Tarantino v. Baker, 

, 779 (4th Cir. 1987) (citing United
Mine Workers v. Gibbs, 

, 726-27 (1966)).

                    15
them because they failed to associate themselves with his political
campaign and because they actively spoke and campaigned for his
opponent. These allegations state two separate First Amendment
claims, either of which, if proved, would entitle the deputies to relief:
namely, a political affiliation claim under Elrod v. Burns, 

(1976), and Branti v. Finkel, 

(1980), and a claim
for protected employee speech on a matter of public concern under
Pickering v. Board of Educ. of Township High School Dist., 

(1968), and Connick v. Myers, 

(1983). The majority
misstates and misapplies the Supreme Court's analysis in Elrod and
Branti, and ignores altogether the Pickering-Connick claim. Accord-
ingly, I must respectfully dissent.

I.

The majority fundamentally errs in its Elrod-Branti analysis. It
fails to engage in a particularized examination of the actual duties of
each deputy to determine whether Sheriff Medford has met the burden
of showing that party affiliation is an acceptable job requirement, an
analysis required under Elrod and Branti. The majority also totally
disregards the Supreme Court's teachings as to what sort of duties
may permit a public employer to make political affiliation a job
requirement.

Instead, the majority broadly holds that all deputy sheriffs in North
Carolina -- regardless of their actual duties-- are policymaking offi-
cials. As a result, when North Carolina deputies exercise their First
Amendment right to engage in a political campaign or associate with
a political party, they now do so at risk of losing their jobs. This all-
encompassing holding is made without any inquiry into the actual job
duties of the deputies before us and in the face of a record consisting
only of the limited facts pled in the complaint, none of which support
the holding. In order to come to this holding, on these skeletal facts,
the majority must expand the narrow exception to the general rule
announced in Elrod and Branti to the extent that the exception swal-
lows the rule.

A.

The Supreme Court held in Elrod, and reiterated in Branti, that the
First Amendment prohibits the dismissal of public employees "solely

                    16
for the reason that they were not affiliated with or sponsored by" a
certain political party. 

(quoting 

). The only exception to this rule is when "party affilia-
tion" constitutes "an acceptable requirement for . . . government
employment." 

a public employee holds a confidential
or policymaking position, his employer may be justified in discharg-
ing him because of his party affiliation but only if the employer "can
demonstrate that party affiliation is an appropriate job requirement for
the effective performance of the public office involved." 

. For this reason, "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." 

majority pays lip service to some of these principles, it
resolutely refuses to follow them. Instead, it holds "[i]f the position
resembles `a policymaker, a communicator, or a privy to confidential
information,' then loyalty to the sheriff is an appropriate requirement
for the job." (emphasis added) (footnote omitted). This holding flies
in the face of the Supreme Court's teaching that "party affiliation is
not necessarily relevant to every policymaking or confidential posi-
tion." 

also ignores the Court's mandate that in each case a
public employer must "demonstrate" that "party affiliation" consti-
tutes a proper requirement "for the effective performance of the pub-
lic office involved." 

See also 

(characterizing this as the "government's burden"). The major-
ity does not require the sheriff to bear any "burden" or "demonstrate"
in any way that party affiliation is an appropriate requirement for the
effective performance of the particular "public office involved." 

engages in no analysis of the particular duties of each dep-
uty.

In view of this, the majority's criticism of Jones v. Dodson, 

(4th Cir. 1984), as a "wholesale pronouncement[ ]" on the
status of deputy sheriffs instead of a "position-specific analys[is]" is
indeed ironic. Although the majority is likely correct that a proper
Elrod-Branti analysis, see e.g., 

-20, requires

                    17
a more detailed, position-specific and fact-based analysis than we
applied in Dodson, the majority utterly fails to heed its own warning
against "wholesale pronouncements." Instead, it finds that all North
Carolina deputy sheriffs are policymakers -- without ever consider-
ing the positions held by each of the deputies at issue or their specific
job duties.

This may be because even a cursory examination of the facts here
would not permit the majority's holding. The only facts we have
before us are the deputies' allegations that their "job requirements
consisted of performing ministerial law enforcement duties for which
political affiliation is not an appropriate requirement" and that none
of them "occupied a policymaking or confidential position." (empha-
sis added).

Perhaps another reason why the majority refuses to engage in the
"position-specific analysis" that it acknowledges Elrod and Branti
mandate is because when the Supreme Court applied that analysis --
in Elrod itself -- to facts virtually identical to those alleged here it
unequivocally held that the plaintiffs did state a cause of action. In
Elrod, as in the present case, all of "the plaintiffs were deputy sher-
iffs." Burns v. Elrod, 

, 1136 (7th Cir. 1975). They
brought suit against a newly elected sheriff, who, like Sheriff Med-
ford, "assume[d] office from a Sheriff of a different political party."

. Like the deputies here, they alleged that the
new sheriff discharged them because of their party affiliation. 

As here, the defendant sheriff submitted no evidence but simply
moved to dismiss the deputies' complaint for failure to state a claim.

majority directs the district court to do here, the district
court in Elrod granted that motion and dismissed the deputies' com-
plaint. 

of the majority's holding, one would think that the
Supreme Court upheld that dismissal -- but it did not. Rather, the
Court held that because "the practice of patronage dismissals is
unconstitutional under the First and Fourteenth Amendments" the
deputies had "stated a valid claim for relief." 

Accordingly,
the Court affirmed the court of appeals, which had reversed the dis-
trict court and found the deputies were entitled to a preliminary
injunction preventing partisan discharges, and directed that, if the

                    18
sheriff wished to assert that any of the deputies were policymakers
whose duties made party affiliation a job requirement, he would have
to shoulder that "burden" on remand. 

373-74.

Thus, at precisely the same procedural stage and on virtually iden-
tical factual allegations as those here, the Supreme Court in Elrod
expressly held that dismissal for failure to state a claim is not proper.
The majority never confronts this fundamental, and I believe, insur-
mountable obstacle to its extraordinary holding here. Even if the facts
and holding in Elrod were not on all fours with those in the case at
hand, the majority's holding cannot be reconciled with the Supreme
Court's further teachings as to the kind of employees who do, and do
not, constitute policymaking officials for purposes of the narrow
Elrod-Branti exception.

As an example of an official who might meet this exception the
Branti Court suggested that "the Governor of a State may appropri-
ately believe that the official duties of various assistants who help him
write speeches, explain his view to the press, or communicate with
the legislature cannot be performed effectively unless those persons
share his political beliefs and party commitments." 

. However, the Court expressly held that "the continued
employment of an assistant public defender cannot properly be condi-
tioned upon his allegiance to [a] political party" because a public
defender's "primary responsibility is to serve the undivided interests
of his client" and "[t]hus, whatever policy making occurs in the public
defender's office must relate to the needs of individual clients and not
to any partisan political interests." 

. Nothing
in the skeletal pleadings before us suggests that the plaintiffs here per-
formed tasks even remotely similar to those of a gubernatorial press
or legislative aide. Indeed, deputy sheriffs would generally appear to
have fewer policymaking duties than assistant public defenders. Fur-
thermore, the plaintiff deputies allege that they performed only "min-
isterial law enforcement duties" and occupied no"policymaking or
confidential position."

In sum, the Supreme Court has directed that a court inquire as to
whether the "hiring authority" can "demonstrate" that party affiliation
is an "appropriate" requirement for the "effective performance of the
public office involved." 

utterly refuses to do this. If

                    19
it did, it could only conclude that Sheriff Medford has failed to "dem-
onstrate" any such thing. Rather, on the limited facts available at this
time as to the actual job duties of the ten plaintiff deputies, there is
no basis for concluding that party affiliation is an"appropriate"
requirement for the effective performance of their duties.

B.

Instead of relying upon the actual job duties of the deputies before
us and determining whether those duties require membership in a par-
ticular political party, as the Supreme Court has directed, the majority
relies on broad, and often misleading, generalizations concerning
North Carolina law.

First, the majority asserts that because a sheriff is elected to his
post as the candidate of one political party with an"expressed politi-
cal agenda," he is entitled to require that his deputies belong to the
same party. The elected status of an employer cannot be a significant
factor, however, because most, if not all, political firing cases begin
with the election of an official, presumably with "an expressed politi-
cal agenda." See, e.g., 

; 

.
The critical question is not whether the sheriff was elected as a candi-
date of one party, with an agenda, but whether each one of his depu-
ties must be a member of the sheriff's political party in order to
"effective[ly] perform[ ]" his"public office." 

that question the majority suggests that deputy sher-
iffs exercise "significant discretion in performing their jobs," relying
on a case interpreting the responsibilities of Illinois deputy sheriffs.
See Upton v. Thompson, 

, 1215 (7th Cir. 1991). The
majority ignores the fact that in North Carolina, "a deputy is autho-
rized to act only in ministerial matters." State v. Corbett, 

, 23 (N.C. 1952) (quoting Styers v. Forsyth County, 

,
308 (N.C. 1937)); see also Gowens v. Alamance County, 

, 340 (N.C. 1939) (a deputy "is the deputy of the sheriff, one
appointed to act ordinarily for the sheriff and not in his own name,
person or right . . . . The duties and authority of a deputy sheriff relate
only to the ministerial duties imposed by law upon the sheriff."). A
"ministerial act" is done "under the authority of a superior [and]
involves obedience to instructions, but demands no special discretion,

                     20
judgment or skill." Black's Law Dictionary 996 (1990) (emphasis
added).

The majority also relies upon the fact that "the sheriff can be held
liable for the misbehavior of the deputies." Again, the majority over-
states North Carolina law. True, some "acts of the deputy are acts of
the sheriff" and "[f]or this reason, the sheriff is held liable on his offi-
cial bond for acts of his deputy." 

. But, this
liability is not unlimited. "Under [North Carolina] law a deputy is
authorized to act only in ministerial matters, and, in respect of these
matters, he acts as vice-principal, or alter ego of the sheriff." 

added). Therefore, a sheriff is liable when a deputy is "act-
ing in the capacity of deputy sheriff," i.e., performing "ministerial"
acts under the authority and supervision of the sheriff, not for any and
all acts. 

Thus, the discretion of deputy sheriffs under North Carolina law,
and a sheriff's liability for the acts of deputies, is extremely limited.
A new sheriff can certainly instruct his deputies on his priorities with
the expectation that deputy sheriffs must act pursuant to the sheriff's
instructions. If a deputy disobeys, of course, a sheriff may dismiss
him for insubordination. But, under North Carolina law a deputy does
not have the kind of discretion that allows for wholesale dismissal of
each and every deputy on the grounds of political affiliation. Cf.

-20. Indeed, the deputies here specifically
allege -- and there is no evidence to the contrary-- that their "job
requirements consisted of performing ministerial law enforcement
duties."

A few statistics demonstrate that the majority's holding is both
extraordinary and ill advised. As of 1988, 151 commissioned officers
were employed in the Buncombe County Sheriff's Office and a total
of 4,668 commissioned officers were employed in Sheriff's offices
throughout the state. See John Clements, North Carolina Facts 61-
271 (1988) (enumerating the commissioned officers for each North
Carolina county). The majority holds that each and every one of these
deputies is a policymaking employee.* The majority may be correct
_________________________________________________________________

* The majority suggests that its holding is limited only to "deputies
actually sworn to engage in law enforcement activities on behalf of the

                     21
that discovery as to the job duties of the plaintiff deputies may reveal
that some of them occupy positions for which party membership is a
legitimate job qualification. But to make a blanket pronouncement
that all North Carolina deputies, regardless of actual job duties, are
policymaking employees is to make the Elrod-Branti exception into
the rule, and to eviscerate the First Amendment protections those
cases guaranteed to government workers like the deputies before us
today.

II.

Not only does the majority incorrectly analyze the deputies' Elrod-
Branti claim, it also totally ignores the deputies' Pickering-Connick
claim.

A.

Unquestionably, the deputies allege a Pickering -Connick claim. In
addition to the Elrod-Branti claim that they were "terminated for fail-
ing to associate themselves politically with the campaign organization
of defendant Medford," the deputies also allege that they "supported
opposition candidates in their political campaigns" and "addressed
matters of public concern, including the relative qualifications of the
candidates for the office of Sheriff." The deputies further allege that
this speech took place "during off-duty hours," not at their "place of
work" and caused no "disruption within the sheriff's office." In doing
so, the deputies allege a claim under Pickering and Connick.

As the Supreme Court explained just last term, when a plaintiff
alleges that "a government employer take[s] adverse action on
account of an employee or service provider's right of free speech" a
court must apply, not the Elrod-Branti analysis, but the Pickering-
Connick balancing test. O'Hare Truck Service, Inc. v. City of
Northlake, 

, 2357-58 (1996). See also Joyner v.
Lancaster, 

, 22-23 (4th Cir. 1987) (applying Connick to
_________________________________________________________________

Sheriff." But all "commissioned officers" are so "sworn." Thus, the
majority's attempted "limitation" only demonstrates our ignorance con-
cerning the plaintiffs' actual job duties, and the sweeping breadth of the
majority holding.

                    22
deputy's claim of unconstitutional dismissal after active campaigning
for sheriff's opponent); McBee v. Jim Hogg County, Tex., 

, 1014-1015 (5th Cir. 1984) (en banc) (applying Connick to a
claim by deputies fired for actively supporting the opposition sheriff);
Jones v. Dodson, 

, 1334-36 & n. 6 ("Where the pro-
tected activity involves `overt expression of ideas' the more open-
ended inquiry prescribed by Pickering and its progeny are required to
accomplish the necessary balancing. This is so even where the argu-
ably protected activity involves `political' speech or expression
. . . .").

The majority recognizes that the deputies "actively campaign[ed]
for [Medford's] opponent." It also recognizes that "[w]hen public
employees are subjected to discipline for the content of their speech,
courts analyze these claims under the Connick-Pickering line of
cases." Yet the majority inexplicably concludes that "[t]he wholesale
dismissal of deputies who campaigned for the losing candidate . . .
implicates the constitutional analysis of political patronage as devel-
oped in the Elrod-Branti line of cases." (emphasis added). That hold-
ing is directly contrary to the Supreme Court's directive in O'Hare,
i.e., that the Pickering-Connick balancing test, rather than the Elrod-
Branti analysis, is applicable to such claims.

The majority likely refuses to follow O'Hare and acknowledge that
the deputies have alleged a Pickering-Connick claim because that
claim clearly cannot be dismissed at this stage.

B.

The Pickering-Connick analysis involves a two step process to
determine whether a public employee's speech is constitutionally pro-
tected. First, we ask whether the employee spoke on a matter of "pub-
lic concern." 

. If so, we balance "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 pro-
moting the efficiency of the public services it performs through its
employees." 

.

There can be little question that the deputies have alleged that they
engaged in speech involving a matter of public concern. The Supreme

                    23
Court has long recognized that the protection of speech discussing
political candidates is at the core of the First Amendment:

        As Madison observed in 1800, just nine years after ratifica-
        tion of the First Amendment: "Let it be recollected, lastly,
        that the right of electing the members of the government
        constitutes more particularly the essence of a free and
        responsible government. The value and efficacy of this right
        depends on the knowledge of the comparative merits and
        demerits of the candidates for public trust, and on the equal
        freedom, consequently, of examining and discussing these
        merits and demerits of the candidates respectively."

Harte-Hanks Comm., Inc. v. Connaughton, 

, 687 (1989)
(quoting 4 J. Elliot, Debates on the Federal Constitution 575 (1861)).

"Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of government
established by our Constitution. The First Amendment affords the
broadest protection to such political expression in order `to assure
[the] unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.'" Buckley v. Valeo, 

, 14 (1976) (quoting Roth v. United States , 

, 484
(1957)). Accordingly, the deputies' claim that each of them "exer-
cised his or her rights of free speech" and was terminated "for speak-
ing in favor of the opposition candidates" and"address[ing] matters
of public concern, including the relative qualifications of the candi-
dates for the office of sheriff" alleges speech on a matter of public
concern squarely within core First Amendment protections.

Because the deputies have thus alleged that they spoke on a matter
of public concern the next step is to balance their interests "in com-
menting upon matters of public concern" against "the interest[s] of the
State, as an employer, in promoting the efficiency of the public ser-
vices it performs through its employees." 

.
In this case, there is nothing to balance against the deputies' rights as
citizens to "debate on the qualifications of[the] candidates," which
the First Amendment clearly protects. 

.

The only facts before us at this juncture are those alleged by the
deputies in their complaint. There, the deputies assert that their cam-

                    24
paigning "occurred on their own time . . . did not occur at plaintiffs'
place of work [and] did not cause any disruption within the sheriff's
department." The complaint further alleges that"each plaintiff was
fully prepared, as a professional law enforcement officer, to set aside
his or her political opinions and to work loyally and cooperatively
with the successful candidate for sheriff." Sheriff Medford has sub-
mitted no evidence to counter these allegations. Thus, at this stage,
there is no evidence of inefficiency or disruption in the workplace to
balance against the deputies' undeniably strong interest in engaging
in political speech. Cf. Joyner v. 

(in
view of evidence that a deputy's campaigning caused "friction" and
"pervasive distrust and plummeting morale" and "actual" disruption,
we upheld the sheriff's decision to discharge him).

In sum, the deputies allege that Sheriff Medford discharged them
as a result of speech on a matter of public concern, and that no coun-
tervailing government interest justified their discharge. Sheriff Med-
ford has presented no contrary evidence. It may well be that he has
such evidence. It may be that the deputies did not actually participate
in the political campaign, or that their campaign activity caused sub-
stantial disruption in the sheriff's department. But, at this stage, the
Sheriff has produced no such evidence. Accordingly, the deputies
have indisputably pled a Pickering-Connick claim -- and the majority
errs in dismissing it.

III.

The majority notes that "lower courts have issued conflicting and
confusing opinions" under Elrod and Branti. (internal quotation mark
omitted). At least some of these inconsistencies can be laid at the feet
of courts, like today's majority, that are simply antagonistic to the
Supreme Court's Elrod-Branti jurisprudence. Even if inferior courts
believe that Supreme Court holdings are ill-advised, they are not at
liberty to ignore those holdings.

Time and again, inferior federal courts have sought to circumvent
the Elrod-Branti jurisprudence by refusing to apply it to decisions
regarding promotions, transfers, or dealings with independent con-
tractors. See, e.g., O'Hare Truck Service, Inc. v. City of Northlake, 

(7th Cir. 1995) (holding Elrod-Branti does not apply to

                    25
independent contractors); Horn v. Kean, 

(3d Cir. 1986)
(en banc) (same); Sweeney v. Bond, 

(8th Cir. 1982)
(same); Rutan v. Republican Party of Illinois, 

(7th Cir.
1989) (en banc) (Elrod-Branti does not apply to decisions regarding
promotions or transfers). Time and again, the Supreme Court has
rejected these limitations on the Elrod-Branti mandate. See Rutan v.
Republican Party of Ill., 

, 74-75 (1990) (overruling view
that "promotions, transfers and recalls after layoffs based on political
affiliation or support are [not] an infringement on the First Amend-
ment rights of public employees"); O'Hare Truck Svce., Inc. v. City
of Northlake, 

, 2356-57 (overruling view that Elrod-
Branti does not apply to dismissals of independent contractors).

Yet, the majority insists upon following those courts that have
improperly attempted to limit the Elrod-Branti holding, relying exten-
sively on Upton v. 

, an opinion from the
same circuit that was reversed in both Rutan and O'Hare, while
ignoring more persuasive authority from other circuits. See, e.g.,
Burns v. County of Cambria, Pa., 

, 1023 (3d Cir. 1992)
("[F]iring deputy sheriffs for their political affiliation or activities
[does not fall] within the narrow exception for political dismissals
recognized in Branti and Elrod."); Dickson v. Quarberg, 

, 1442-43 (10th Cir. 1988) (head jailer and special deputy were
protected under Branti). In addition to refusing to engage in the
proper Elrod-Branti analysis and finding all (more than 4,600 in
1988) North Carolina deputy sheriffs are policymakers, the majority
ignores the deputies' potentially meritorious claim under Connick and
Pickering. Taken together, these holdings make the hiring, firing, pro-
motion, and transfer decisions of North Carolina sheriffs essentially
unreviewable. They also call into question whether the numerous
North Carolina state troopers (more than 1,100 in 1988) and police
officers (more than 7,900 in 1988) are also "policymakers" who can
be dismissed at will by each new political regime. See John Clements,
North Carolina Facts 23, 61-271 (1988). Only time will tell the
extent that the resulting loss of First Amendment freedoms, let alone
the constant turnover and retraining of law enforcement officers, will,
in the majority's words, "handicap[ ] and impede[ ] law enforcement"
efforts.

Judge Hall, Judge Murnaghan, and Judge Michael join in this dis-
senting opinion.

                    26
ERVIN, Circuit Judge, dissenting:

Were I to think it proper to do so, I would agree with the analysis
offered by Judge Motz in her dissenting opinion. However, I do not
believe we possess appellate jurisdiction to reach the merits. I there-
fore join neither opinion and write separately to explain why this
appeal should be dismissed.

I cannot agree with the majority's determination that we possess
jurisdiction to hear this appeal. Ordinarily, appellate jurisdiction is
lacking to hear an appeal from an order denying a Rule 12(b)(6)
motion to dismiss since such an order is interlocutory in nature. Cer-
tain collateral orders are, however, considered "final decisions" within
the meaning of 28 U.S.C. § 1291 and are therefore immediately
appealable. See Cohen v. Beneficial Indus. Loan Corp., 

,
546-47 (1949). In Coopers & Lybrand v. Livesay, 

(1978), the Supreme Court stated that the "small class" of collateral
orders comprise those that "conclusively determine the disputed ques-
tion, resolve an important issue completely separate from the merits
of the action, and [are] effectively unreviewable on appeal from a
final judgment." 

In particular, certain denials of absolute and qualified immunity fall
within this collateral order doctrine. In Nixon v. Fitzgerald, 

(1982), the Court held that an order denying a motion for sum-
mary judgment on the basis of absolute immunity was immediately
appealable. 

742-43. In doing so, it noted that it had twice
before held that "orders denying claims of absolute immunity are
appealable under the Cohen criteria." 

(citing Helstoski v.
Meanor, 

(1979); Abney v. United States, 

(1977)). Both of these cases, however, arose in the criminal context,
Helstoski dealing with a congressman's immunity under the Speech
and Debate Clause and Abney dealing with the right not to be exposed
to double jeopardy.

In Mitchell v. Forsyth, 

(1985), the Court extended the
collateral order doctrine to include the denial of qualified immunity
raised in a motion for summary judgment. 

524-30. The
Mitchell Court stressed that a "major characteristic of the denial or
granting of a claim appealable under Cohen's`collateral order' doc-

                    27
trine is that `unless it can be reviewed before[the proceedings termi-
nate], it never can be reviewed at all.'" 

(citations omitted).
Immunity is "an entitlement not to stand trial under certain circum-
stances," 

officials are not subjected to burdens of broad-
reaching discovery and costs of trial. The Court's entire analysis was
couched in terms of appeals from denials of summary judgment
because it is that denial that "finally and conclusively determines the
defendant's claim of right not to stand trial on the plaintiff's allega-
tions." 

(emphasis in original).

Since Mitchell the Court has occasionally discoursed upon immu-
nity claims and the collateral order doctrine in sundry dicta. In Lauro
Lines s.r.l. v. Chasser, 

(1989), for example, the Court
did state the proposition more broadly that "in civil cases, we have
held that the denial of a motion to dismiss based upon a claim of
absolute immunity from suit is immediately appealable prior to final
judgment," 

but the Court cited only to Nixon and Mitchell,
both cases arising from summary judgment orders. More recently,
however, the Court has confirmed its reluctance to expand the excep-
tions of the collateral order doctrine, stressing that the "`narrow'
exception should stay that way and never be allowed to swallow the
general rule." Digital Equip. Corp. v. Desktop Direct, Inc., 

, 868 (1994). In dictum leaning the other way, the Court stated
that Mitchell and Abney may only be "fairly cited for the proposition
that orders denying certain immunities are strong candidates for
prompt appeal under § 1291." 

(emphasis added). I would
construe this language to be far from a categorical rule requiring that
any order denying absolute or qualified immunity is an immediately
appealable collateral order. Moreover, the Supreme Court has specifi-
cally directed courts of appeal "to view claims of a `right not to be
tried' with skepticism, if not a jaundiced eye." 

cf. Van Cau-
wenberghe v. Biard, 

, 524 (1988) ("The critical question,
following Mitchell, is whether `the essence' of the claimed right is a
right not to stand trial.").

In the last two years, the Supreme Court has twice dealt with quali-
fied immunity claims in federal actions arising from summary judg-
ment postures.* In Johnson v. Jones, 

(1995), a
_________________________________________________________________

* In the term just completed, the Court did again address the issue of
qualified immunity in Johnson v. Fankell, 

(1997). That

                     28
unanimous Court held that the denial of summary judgment on a qual-
ified immunity defense claim was not an immediately appealable
order to the extent that the order determined there were genuine issues
of fact for trial. In the course of its analysis of the collateral order
doctrine, the Court noted two considerations that would clearly coun-
sel against finding the order in the instant case to be immediately
appealable. First, interlocutory appeals hazard wasting appellate court
resources by presenting "appellate courts with less developed records"
or by bringing them "appeals that, had the trial simply proceeded,
would have turned out to be unnecessary." 

(citations omit-
ted). Clearly, without even an answer having been filed, we face a
less-than-developed record. Second, Cohen's criterion that the matter
be collateral to the merits of the action "means that review now is less
likely to force the appellate court to consider approximately the same
(or a very similar) matter more than once, and also seems less likely
to delay trial court proceedings (for, if the matter is truly collateral,
those proceedings might continue while the appeal is pending)." 

(emphasis in original). Because the immunity defense may be
raised later, I believe we would have been presented with the same
issue, but more factually developed, later. It is worth pointing out that
the Court carefully noted--twice--that Mitchell dealt only with the
appealability of an order denying summary judgment. See 

12.

Two terms ago, the Court appeared to limit Johnson. In Behrens v.
Pelletier, 

(1996), the Court held that a denial of
summary judgment on a qualified immunity claim, not predicated on
a fact-based determination as in Johnson, remained immediately
appealable even though an earlier interlocutory appeal had denied the
immunity defense. Although an unusual posture, the Court plainly
was dealing with a qualified immunity defense in the summary judg-
ment context. While the Court twice declared that Mitchell's interloc-
utory appeal rule applied to both denials of qualified immunity at the
_________________________________________________________________

case concerned, however, whether defendants in a state-court § 1983
action have a federal right to an interlocutory appeal from a denial of
qualified immunity. Although the Court ruled that there was no such fed-
eral right, I do not read the opinion as providing any further guidance in
dealing with qualified immunity in federal actions.

                    29
dismissal or summary judgment stage, 

the language in
both cases is dicta construing dicta.

In the first instance, the Court stated, "Mitchell clearly establishes
that an order rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is a `final' judgment
subject to immediate appeal." 

(emphases
in original). This comment, however, directly construes the following
language from Mitchell:

        Unless the plaintiff's allegations state a claim of violation of
        clearly established law, a defendant pleading qualified
        immunity is entitled to dismissal before the commencement
        of discovery. Even if the plaintiff's complaint adequately
        alleges the commission of acts that violated clearly estab-
        lished law, the defendant is entitled to summary judgment
        if discovery fails to uncover evidence sufficient to create a
        genuine issue as to whether the defendant in fact committed
        those acts.

Mitchell v. Forsyth, 

, 526 (1985) (citation omitted); see

(quoting this language). The phrase "dis-
missal before the commencement of discovery" in this context does
not mean a Rule 12(b)(6) dismissal before an answer has been filed.
Instead, it only means that, in certain circumstances, the defendant
may avoid discovery, as, for example, where the defendant pleading
immunity moves for judgment on the pleadings pursuant to Rule
12(c) or immediately moves for summary judgment before discovery
has commenced. When the above language is read in its full context,
it is clear the Mitchell Court did not envision denials of Rule 12(b)(6)
motions to be immediately appealable. Thus the sentences before and
after the above quoted language state:

        [T]he Harlow [v. Fitzgerald, 

(1982)] Court
        refashioned the qualified immunity doctrine in such a way
        as to "permit the resolution of many insubstantial claims on
        summary judgment" and to avoid "subject[ing] government
        officials either to the costs of trial or to the burdens of
        broadreaching discovery" in cases where the legal norms the
        officials are alleged to have violated were not clearly estab-

                    30
        lished at the time. 

[The above quoted lan-
        guage appears here.] Harlow thus recognized an entitlement
        not to stand trial or face the other burdens of litigation, con-
        ditioned on the resolution of the essentially legal question
        whether the conduct of which the plaintiff complains vio-
        lated clearly established law.

(emphasis added). Mitchell, then, was
emphatically concerned with the summary judgment posture, as was
Harlow. Nowhere does this language imply that a defendant should
be free from the burdens of answering a complaint, nor that if that
tack is taken, and rejected by the district court, that such a defendant
may immediately appeal that denial.

In the second instance, the Behrens Court stated that the proposi-
tion that "there could be no immediate appeal from denial of a motion
to dismiss but only from denial of summary judgment . . . is fore-
closed by Mitchell, which unmistakably envisioned immediate appeal
of `[t]he denial of a defendant's motion for dismissal or summary
judgment on the ground of qualified immunity.'" 

(quoting 

) (emphasis in origi-
nal). Again, when this language from Mitchell is read in context, it is
plain that the Mitchell Court was not contemplating immediate
appeals of denials of Rule 12(b)(6) motions. In the same paragraph,
after considering why it is that the district court's decision is "conclu-
sive" within the meaning of the collateral order doctrine, the Mitchell
Court stated that "the court's denial of summary judgment finally and
conclusively determines the defendant's claim of right not to stand
trial on the plaintiff's allegations." 

(first
emphasis added; second emphasis in original).

Thus, in both instances, although the Mitchell Court did slip in the
term "dismissal," whether consciously or inadvertently, Mitchell itself
dealt unequivocally with the denial of summary judgment, and the
entire opinion, in context, was cast in those terms, for the Court was
principally concerned with subjecting defendants to the costs and bur-
dens of going beyond summary judgment and into the next phase of
litigation.

Indeed, as the dissent in Behrens accurately pointed out, Mitchell
was "concerned primarily with preserving defendants' immunity from

                     31
trial, not discovery," and that is why the Court had never before even
suggested that an interlocutory appeal could protect a defendant's
"anti-discovery interest." 

(Breyer, J., dissenting) (emphasis
in original). Given the procedural posture of the case, I would there-
fore construe Behrens to mean only that any prior adjudication of
qualified immunity prior to summary judgment will not necessarily
have res judicata or other effect on the law of the case and that courts
of appeal therefore cannot refuse to hear, for lack of jurisdiction,
interlocutory appeals of denials of qualified immunity at the summary
judgment stage.

Despite all this conflicting dicta, the Supreme Court has yet to face
squarely the issue of whether the denial of a claim of qualified immu-
nity arising in the context of a Rule 12(b)(6) motion satisfies the
Cohen criteria for an appealable collateral order. We have held, how-
ever, in a clearly distinguishable Rule 12(b) context, that an order
granting a plaintiff's motion to strike a defendant's absolute immunity
defense is immediately appealable under Nixon. Front Royal and
Warren County Indus. Park Corp. v. Town of Front Royal, 

, 79 (4th Cir. 1989). Obviously, the motion to strike arose after the
answer had been filed.

In the instant case, this appeal arose before Medford had ever filed
his answer. Immunity is an affirmative defense whose burden of
pleading rests with the defendant and which does not go to the exis-
tence of a § 1983 cause of action. Gomez v. Toledo, 

, 640
(1980); see also Siegert v. Gilley, 

, 231 (1991)
("Qualified immunity is a defense that must be pleaded by a defen-
dant official."). The district court's denial of the motion to dismiss did
nothing more than look to the adequacy of the plaintiffs-appellees'
complaint to satisfy the Rule 12(b) criteria.

In the context of this particular case, it is crucial to recognize that,
were we to dismiss the appeal, Medford will not have been denied his
opportunity to assert this defense, for he may do so in his answer.
After the pleadings are closed, Medford may then move for judgment
on the pleadings pursuant to Rule 12(c) or for summary judgment
pursuant to Rule 56 on the basis of his claim of immunity. If that
motion is denied, Medford may then appeal, an appeal that would be
reviewable under the collateral order doctrine. See Behrens, supra. In

                    32
fact, it is these possible later bites at the appellate apple on the immu-
nity claim--before the burdens of full discovery and the costs of trial
--that demonstrate that the denial of a Rule 12(b)(6) motion to dis-
miss is not a denial that "finally and conclusively determines the
defendant's claim of right not to stand trial on the plaintiff's allega-
tions." Mitchell v. Forsyth, 

, 527 (1985) (emphasis in
original). Although our sister circuits have treated denials of Rule
12(b)(6) motions raising immunities as collateral orders, none has
actually analyzed, as I do here, whether it possessed jurisdiction to do
so. See, e.g., Hafley v. Lohman, 

, 266 (8th Cir. 1996);
Morin v. Caire, 

, 119 (5th Cir. 1996); Wilson v.
Formigoni, 

, 1062 (7th Cir. 1994); Figueroa v. United
States, 

, 1408 (9th Cir. 1993), cert. denied, 

(1994). Nevertheless, because this crucial criterion for determin-
ing whether an order is collateral is not satisfied in the Rule 12(b)(6)
context, I would conclude that we lack appellate jurisdiction to hear
this appeal.

I do not believe that we are obliged to follow the dicta in Behrens.
To do so in this instance contravenes our nature as a court of limited
jurisdiction. We ought to interpret any dicta that affects our jurisdic-
tion in as narrow a fashion as possible, and we should never reach out
to address issues that are not properly before us. I believe that the
court, by adopting the Behrens dicta as the rule in this circuit, has vio-
lated both of these jurisprudential principles.

That violation is particularly egregious here, for the majority ulti-
mately determines that it need not even reach the issue of whether
Medford is entitled to qualified immunity. Majority op. at 15. The
majority has invoked a questionable jurisdictional basis only to
invoke the equally questionable notion of pendent appellate jurisdic-
tion. See Swint v. Chambers County Comm'n, 

(1995).
Only by such a doubly tenuous thread is the majority able to review,
and reverse, the denial of a Rule 12(b)(6) dismissal motion.

The majority relies on our panel decision in Taylor v. Waters, 

, 437 (4th Cir. 1996), as grounds upon which to exercise pen-
dent appellate jurisdiction. See Majority op. at 3 n.2. Taylor, however,
recognized the limitations of appellate jurisdiction. Although Taylor
noted that pendent appellate jurisdiction would exist only if the pen-

                     33
dent issue were "(1) inextricably intertwined with the decision of the
lower court to deny qualified immunity or (2) consideration of the
additional issue is necessary to ensure meaningful review of the quali-
fied immunity question," 

, the Taylor panel
concluded that it lacked jurisdiction to review the pendent issues.
Taylor, therefore, provides only tangential support, at best, for the
exercise of pendent jurisdiction here. Indeed, we have never invoked
pendent appellate jurisdiction in the wake of Swint. See Garraghty v.
Commonwealth of Va., Dep't of Corrections, 

, 1279 n.5
(4th Cir. 1995); Renn v. Garrison, 

, 352 (4th Cir. 1996).
I do not believe we should do so here without a serious analysis of
its ramifications, especially since the issue providing the jurisdictional
basis on which it is invoked is not even reached.

The majority, for whatever reason, is apparently strongly motivated
to reach out and strike down Jones v. Dodson, 

(4th Cir.
1984). To do so it is willing to expand our constitutionally- and
congressionally-limited jurisdiction to reverse the denial of a motion
to dismiss, before an answer has even been filed. I will not join in this
Orwellian perversion of the final judgment rule and our long-
established precepts of notice pleading. I, therefore, respectfully dis-
sent.

                    34