IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30802 Summary Calendar

JERRY DOUGLAS POWE, JR.,

Plaintiff-Appellant,

versus

STEVEN E. MAY, in his official capacity as Sheriff of Caldwell Parish,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Louisiana (USDC No. 00-CV-2035) _______________________________________________________ March 3, 2003

Before REAVLEY, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

Jerry Douglas Powe, Jr., former deputy sheriff of Caldwell Parish, Louisiana,

sued Steven E. May, current Sheriff, for violations of the Fair Labor Standards Act,

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

et seq. The alleged violations occurred during the tenure of former

Sheriff Charles Thompson. The sole issue presented by this appeal is whether the

district court correctly determined Sheriff May cannot be held liable for the acts of

his predecessor under the successorship doctrine. We affirm for the following

reasons:

1. A sheriff in Louisiana must pay the salary debts of his predecessor if, upon

taking office, he (1) receives a balance in the Sheriff’s Salary Fund (also

known as the “General Fund”) or (2) makes collections which are properly

due to the former sheriff. Asadie v. Hebert,

(La.Ct.App.,

Orleans 1943). May provided summary judgment evidence, which Powe has

failed to rebut, that the General Fund’s liabilities exceeded its assets when

May took office, and that he does not expect to collect any other funds due

Sheriff Thompson. Thus, the Louisiana successorship doctrine does not

create liability on the part of Sheriff May.

2. Because we find that liability under the federal successorship doctrine is

inappropriate in this case, we assume without deciding that the doctrine

applies to the FLSA. There are three main criteria for imposing successor

liability: (1) a substantial continuity of business operations from the previous

entity to its successor; (2) notice to the successor; and (3) the successor’s

2 ability to provide relief. Rojas v. TK Communs.,

, 750 (5th Cir.

1996). There is insufficient continuity between Sheriff Thompson’s

administration and Sheriff May’s administration to justify the imposition of

successor liability. Under the Louisiana Constitution, the office of Sheriff is

created by the election of each individual Sheriff, and it expires once that

individual’s term expires. See LA. CONST. art. 5, § 27. Moreover, every

sheriff in Louisiana is a political subdivision unto himself, and there is no

such thing as a “Parish Sheriff’s Department” or “Parish Sheriff’s Office”.

First Nat’l Bank v. Bailey,

(La.Ct.App. 3 Cir. 1993)

(citing LA. REV. STAT. § 13:5102(B)), rev’d on other grounds,

(La. 1994); Liberty Mut. Ins. Co. v. Grant Parish Sheriff’s Dep’t,

(La.Ct.App. 3 Cir. 1977). Finally, although an incoming Sheriff

may spend whatever unallocated assets were left by his predecessor, under

Louisiana law his liability for his predecessors debts is limited by the amount

of those assets. There is no continuity of assets, because each Sheriff is

responsible for raising and spending his own funds. Considering the above

factors, we cannot conclude there is continuity between the two Sheriffs’

administrations sufficient to trigger successor liability under federal law.

3. We find no fault with the district court’s balance of the equities in this case.

3 Imposing successor liability would hinder Sheriff May’s ability to police

Caldwell Parish. Sheriff May cannot levy taxes to satisfy a judgment without

voter approval, forcing him to make budget cuts. The interests of the people

of Caldwell Parish are best served by holding each sheriff responsible for his

own debts. The policies underlying the FLSA are also best served by not

imposing successor liability. Sheriffs will be deterred from violating the

FLSA because they will remain liable after their term of office expires.

Additionally, imposing liability on a succeeding sheriff will not deter FLSA

violations because responsibility for the misconduct would be passed on to

his successor. Therefore, we agree with the district court that the

successorship doctrine should not apply. As Powe may not sue Sheriff May

for the misconduct of Sheriff Thompson, summary judgment was appropriate.

AFFIRMED.

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