GEE, Circuit Judge:
Today's case requires us to decide whether the dismissal of four employees of the Texas General Land Office (GLO) violated their constitutional rights. The appellant employees maintain that a Texas statute grants them a property interest in their jobs or, in the alternative, that informal practices within the department do so, as well as that their discharges violated first amendment rights. The trial court entered summary judgment against them, and we affirm.
Appellants were employees of the GLO in January 1983, when appellee Garry Mauro took office as Land Commissioner. Claiming a need for reorganization, Mauro moved swiftly to dismiss employees, discharging the four appellants as of the end of May 1983. Shortly afterwards, they brought a 42 U.S.C. § 1983 action against Mauro and the GLO (hereinafter referred to collectively as Mauro). The original complaint asserted a reasonable expectation of continued employment so long as they satisfactorily performed their duties and that consequently Mauro violated their procedural due process rights by dismissing them without satisfactory cause or a fair hearing. When Mauro moved for summary judgment in July 1984, the employees amended their complaint to add a nebulous first amendment claim — unavailingly, in the event, as the district court entered summary judgment against them on the entire case in September 1984. See Batterton v. Texas General Land Office, 593 F.Supp. 372 (W.D.Texas 1984). The employees appeal.
In reviewing the appeal, we first note the conceptual difference between the due process and the first amendment claims. As the Supreme Court has made clear, the two are distinct:
Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Separate consideration of the two claims is therefore appropriate.
THE DUE PROCESS CLAIM
The employees assert a property interest in their jobs, invoking the line of Supreme Court cases that began with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Sindermann. Considering a teacher's asserted right of continued employment, the Roth court refused to base the concept of property on an employee's mere expectation; "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement to it." 408 U.S. 577, 92 S.Ct. 2709. The due process clause can protect a public employee, however, should state law provide the basis of an employee's legitimate claim to entitlement:
Id; see also Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976). If a property interest exists, procedural due process then accords such rights as those to notice and a hearing before the employee may be fired. We must first see, therefore, whether Texas law provides GLO employees with any legitimate claim of entitlement to their jobs.
The district court accurately labeled § 31.020, Texas Natural Resources Code, as "the center of the maelstrom." 593 F.Supp. at 373. Dealing with the conditions of employment for GLO employees, § 31.020 provides:
Although the parties advance differing interpretations of this provision, the simple truth is that neither we nor anyone else can tell with any real assurance what it was that the Texas legislature intended when it originally enacted this statute over a century ago, in 1879. Obvious ambiguity results from the provision's contradictory phrases: On the one hand, one who holds his jobs "at the pleasure of the commissioner" sounds a great deal like an at-will employee; on the other, dismissal "for satisfactory cause" seems to restrict the commissioner's ability to fire his employees to discharges for cause. We have found no Texas case interpreting the quoted provision, nor does any legislative history exist.
Texas common law, however, provides rules of statutory interpretation, rules that we shall consider in construing § 31.020. Our reference to these is not mandated by Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny; subject-matter jurisdiction today is based on a federal question, not on diversity of citizenship. Reason dictates, however, that in deriving a meaning from the statute's words we should approach them exactly as would a Texas court, since had we discovered an authoritative interpretation by such a court we would have adopted it and since, should any come later, it will of necessity supersede ours. It would make little sense for us to proceed to an aberrant construction by refusing to apply state canons, canons which will in all probability govern any authoritative construction which the statute ever receives. Turning to these, we find them dispositive.
In Stanford v. Butler, 142 Tex. 692, 699-702, 181 S.W.2d 269, 273-74 (1944), the court held that if an ambiguous statute "has been construed by executive officers of the state charged with its execution, and it has subsequently been re-enacted without substantial change in language, it will
We note that while even standing alone Stanford would mandate this conclusion, other rules bolster its force. Texas law, for example, would regard the ambiguity of § 31.020 as requiring an interpretation favorable to the GLO:
State v. Standard, 414 S.W.2d 148, 153 (1967), quoting Empire Gas & Fuel Co. v. State, 121 Tex. 138, 157-59, 47 S.W.2d 265, 272 (1932). Those unpersuaded by the authority of Stanford would therefore confront further obstacles to any contrary result.
Our interpretation complete, we must now acknowledge that the letter of state law alone is not necessarily determinative. In Roth, the Court held that property interests "are created and their dimensions are defined by existing rules or understandings that stem from ... state law." 408 U.S. at 577, 92 S.Ct. at 2709. (emphasis added); see also Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (teacher can have property interest in his job even absent formal contractual tenure provision if an informal understanding with the college administration existed). We have taken our cue from these cases to recognize that a property right might be based on "mutually explicit understandings." See, e.g., Wells v. Hico Independent School District, 736 F.2d 243, 252 (5th Cir.1984), cert. dismissed 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985), quoting Sindermann, 408 U.S. at 601, 92 S.Ct. at 2699. In today's case, the employees introduced affidavits and depositions asserting that GLO practice during their period of employment (from about 1978 to 1983) was to provide adequate notice of planned dismissal and the opportunity to improve one's performance. On appeal, they argue that this practice sufficed to create a legitimate claim of entitlement protected by the fourteenth amendment.
Once § 31.020 is construed as establishing at-will employment, however, cases such as Sindermann became readily distinguishable from today's. They are all cases in which no statute resolved whether a property interest in one's job existed. The Supreme Court's holding that an informal understanding may lead to a property interest must therefore be recognized as standing in the absence of an officially promulgated position, one way or the other, on the issue of a teacher's tenure. Here, we have interpreted § 31.020 as establishing a clear and official stand; having done so, we conclude that informal understandings and customs contrary, and subsequent, to the enactment of that statute cannot be the source of an employee's property interest. We reiterate the language of Roth that understandings and customs must "stem from ... state law."
Our holding finds support in Hico Independent School District. We there ruled that the school district's custom of providing certain grievance and evaluation procedures could not create property interests in the face of Texas law that failed to provide any basis for a claim of entitlement. See 736 F.2d at 252-54. Nor are we alone in recognizing such a rule. In Baden v. Koch, 638 F.2d 486 (2nd Cir.1980), for example, considering the assertion that an informal understanding between the mayor of New York and the city's chief medical examiner prevented the mayor from exercising his statutory authority to fire the examiner at will, the Second Circuit held that a mutual understanding cannot create a property interest contrary to state law. See id. at 492-93.
Despite the factual dispute over GLO's practices after 1977, summary judgment was appropriate. Events occurring after 1977 are immaterial in determining whether a constitutional violation occurred. This being so, only the resolution of a legal issue — what § 31.020 means — was required. The district court's interpretation of the provision was proper; we therefore affirm summary judgment as to the employee's claim of a due process violation.
THE FIRST AMENDMENT CLAIM
The employees also contend that the district court improperly entered summary judgment on the entire case because the appellees failed to rebut their first amendment claim. Our review begins with a chronicle of the rather complex procedural history preceding the court's summary judgment order. The employees' original complaint did not contain a first amendment claim. On July 11, 1984, both sides filed motions for summary judgment. Three weeks later, the employees filed an amended complaint containing the first reference to their first amendment rights: an assertion that these were violated because Commissioner Mauro fired the plaintiffs to free positions for his political supporters. After this filing, the appellees continued to press for summary judgment on the entire case, without specific reference to the new claim. In response, the employees neither mentioned the claim again nor presented matter supporting it. At a summary judgment hearing held on September 7, 1984, the first amendment allegation was ignored by both sides. After the district court's entry of summary judgment in the appellees' favor, however, the employees filed a motion to alter or amend judgment, noting the existence of the first amendment claim. Appellees retorted that the employees had waived this claim, and the motion to alter or amend was denied.
Under Fed.R.Civ.P. 56(a) and (b), a party may move for summary judgment without affidavits or other supporting evidence. Should he submit such material, however, Rule 56(e) imposes upon the other party the duty to present factual matter in his defense:
The district court believed that the employees were required to present specific facts supporting the first amendment claim to avoid summary judgment. The employees now argue that this belief improperly burdened them with the duty to present specifics. In so arguing, they assume the appellees' failure to address first amendment claim, but while the appellees never referred to the claim explicitly, some of their evidence rebuts the claim. Appellee Mauro asserted in both a deposition and an affidavit that the dismissals stemmed from his
This pronouncement appears, word for word, in the affidavits of three of the appellant employees, but, unsupported by details or other evidence, it does little more than clarify the nebulous first amendment claim in the amended complaint.
The employees' failure to come forward with specifics recalls the decision in Hargrave v. Fibreboard Corp., 710 F.2d 1154 (5th Cir.1983). There, appellant Nicolet, Inc. filed a complaint alleging alter ego liability, successorship liability, and contribution or indemnity as three alternative theories of appellee Turner & Newall, Ltd.'s liability. The subsequent procedural disposition of its claim is similar to that here:
Id. at 1163-64. Acknowledging the drastic nature of summary judgment, we nevertheless affirmed its entry in Hargrave because of Nicolet's failure to demonstrate an actual dispute over material facts.
Hargrave supports affirmance here. While it is true that the employees reminded the district court of the first amendment claim in their motion to alter or amend judgment (thereby distinguishing today's case from Hargrave), the court was under no duty to grant that motion. A district court's decision to deny a motion to alter or amend judgment may be reviewed only for an abuse of discretion. See Weems v. McCloud, 619 F.2d 1081, 1098 (5th Cir.1980). To regard the district court's decision as improper would only be to reward the employees' lack of diligence. They had enough time before the summary judgment hearing to unearth any helpful evidence, yet failed to produce anything beyond unembellished assertions that properly belong in a well-pled complaint. We therefore decline to fashion for them any excuse for their failure to comply with the clear requirements of Rule 56(e).
The district court's order of summary judgment is accordingly