Page:Darden v. Peters - 2007.djvu/1

Rh Of course, there need not be a case directly on point for the law to be clearly established for qualified immunity purposes. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Buonocore v. Harris, 65 F.3d 347, 356–57 (4th Cir.1995). But Ms. Smith has not cited, and we have not found, a single case in which any court, prior to February 2004 (the date of Ms. Smith’s discharge), had recognized a claim similar to hers. That is, no court had allowed a claim that a discharge violated the First Amendment not because the employer was clearing positions for his own supporters or punishing an employee for her political activity, but because the employer was “angry” at the employee due to her relative’s candidacy and, absent any conduct on her part, because he “believed” that she supported her relative, “not the incumbent circuit clerk.”

This may be an unfair reason for firing Ms. Smith but, because she was an at-will employee, Judge Frye could fire her for no reason or any reason at all—except an unlawful reason. I believe that she had alleged facts sufficient to make out a claim that the firing was unlawful; but given the dearth of authority to that effect, I cannot conclude that Judge Frye was on “fair notice” of this. As such, Judge Frye is entitled to qualified immunity.

For this reason, I agree with the majority that we must uphold the dismissal of the complaint.