Order Granting Rehearing En Banc August 26, 1994.
EMILIO M. GARZA, Circuit Judge:
Plaintiff Joseph M. Schultea, Sr. brought this 42 U.S.C. § 1983 lawsuit against Defendants David R. Wood, Homer Ford, and W.F. Plagens — three councilmen of the City of Tomball — and Warren K. Driver — the city manager — ("the Defendants"), alleging that they unlawfully deprived him of his substantive due process rights when transferring him from his position as the City's chief of police to the position of assistant chief. The Defendants moved to dismiss the complaint on qualified immunity grounds. The Defendants now appeal the district court's decision denying their motion. We affirm in part, reverse in part, and remand.
Schultea currently is the assistant chief of police in Tomball. In March 1992, Schultea, then the City's chief of police, began investigating allegations that councilman Wood had engaged in criminal activity. On April 9, 1992, Schultea discussed his investigation with city manager Driver and Mario Del Osso, the city attorney. Schultea, Driver, and Del Osso decided that Schultea should forward all information regarding Wood to the Texas Department of Public Safety ("TDPS"). Schultea alleges that Wood learned of his investigation soon after the April 9 meeting because Driver, on April 10, advised Schultea that Wood demanded that Driver "put Schultea on the City Council's April 20, 1992 agenda for adverse action." Driver, according to Schultea, managed to dissuade Wood from pursuing any "threatened retaliation" against Schultea.
Schultea subsequently filed this lawsuit in federal district court, alleging that the Defendants terminated him in retaliation for reporting Wood's allegedly criminal activities to the TDPS, in violation of the First Amendment, and that the reassignment occurred without due process, in violation of both his property and liberty interests.
We review de novo the district court's decision to deny a motion to dismiss on immunity grounds. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994). "We must accept all well-pleaded facts as true, and we view them in the light most favorable to the plaintiff." Id. "The complaint is not subject to dismissal unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chrissy F. v. Mississippi Dept. of Pub. Welfare, 925 F.2d 844, 846 (5th Cir. 1991) (internal quotation omitted).
As public officials, the Defendants "are entitled to qualified immunity from suit under section 1983 unless it is shown by specific allegations that [they] violated clearly established constitutional law."
To succeed with a claim based on substantive due process in the public employment context, the plaintiff must demonstrate that he had a clearly-established property interest in his employment. Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993). A property interest in employment may be created by an implied contract. Id. Because Texas is an employment-at-will state,
Schultea contends that the City Charter established that he could be removed from his position as chief of police only "for cause."
In Moulton, 991 F.2d at 230-31, and Henderson v. Sotelo, 761 F.2d 1093, 1096-97 (5th Cir.1985), we reviewed similar charter provisions and held that absent "termination for cause" language, this type of charter provision creates no property interest. Consequently, Schultea had no entitlement to continued employment absent cause for dismissal under the Charter and, thus, had no property interest in his status as police chief.
Schultea nevertheless argues that representations made by the city manager who hired him — Don Taylor — constituted an oral agreement that the City would not remove him from his position as police chief except "for cause." Schultea asserts that Taylor "was the appropriate policy maker who had the authority to modify" the Charter provision relating to the chief of police position. Schultea's argument appears to be that because Taylor was expressly authorized to modify the Charter provision, the modification is valid and binds the City. See Moore v. Office of Atty. General, 820 S.W.2d 874, 878 (Tex.App. — Austin 1991) (noting that "the rule that an agent can bind his principal by acts within his apparent authority has been held not to apply to public officials"). However, Schultea has failed to allege that the City Council ever acted to confer any express authority to act as its agent regarding any changes to the at-will provision of the Charter.
Schultea next alleges that the Defendants denied him a liberty interest qualifying for due process protection because the reassignment from police chief to assistant chief, combined with the false accusations that Schultea violated the City's purchasing ordinance, constitutes a loss of employment. Schultea additionally alleges that the Defendants unconstitutionally denied him an opportunity to clear his name. See Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir.1989) ("It is now beyond any doubt that discharge from public employment under circumstances that put the employee's reputation, honor or integrity at stake gives rise to a liberty interest under the Fourteenth Amendment to a procedural opportunity to clear one's name."), aff'd, 901 F.2d 61 (5th Cir.) (en banc), cert. denied, 498 U.S. 855, 111 S.Ct. 153, 112 L.Ed.2d 119 (1990).
As we stated in Moore v. Otero, 557 F.2d 435, 437-38 (5th Cir.1977) (footnote omitted),
In Nix v. City of Galena Park, No. 93-2512 (5th Cir. Jan. 31, 1994), we applied the teachings of Moore to a situation in which the plaintiff was demoted from assistant police chief to captain after the chief of police publicly alleged that Nix violated a police department rule, a violation that could have resulted in criminal theft charges. "Utilizing the `stigma-plus' test outlined in Paul v. Davis," we held that the police chief's "public allegations regarding Nix's on-duty use of a public vehicle [in a prohibited manner], together with Nix's reassignment from Assistant Chief of Police to captain, did not deprive Nix of a liberty interest protected by the due process clause of the fourteenth amendment." Nix, slip op. at 7-8. "Nix's retention of employment following the alleged `deprivation' negate[d] his claim that he was denied a liberty interest." Id. at 8. "The only claim of stigma Nix possesse[d] derives from the injury to his reputation, an interest that does not rise to the level of a liberty interest." Id.
Like Nix, Schultea received "the same or substantially similar salary and fringe benefits" after reassignment. Id. Similarly, Schultea's retention of employment negates his claim that he was denied a liberty interest.
Schultea has failed to allege a cognizable claim that the Defendants violated either a property or liberty interest recognized by the Constitution. Anticipating this holding, Schultea has requested that we remand the case to allow another pleading that might cure the defects. "Dismissing an action after giving the plaintiff only one opportunity to state his case is ordinarily unjustified." Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.1986); see also Brown v. Texas A & M Univ., 804 F.2d 327, 334 (5th Cir.1986) ("the liberal pleading and amendment standards established by the Federal Rules of Civil Procedure mandate that we remand to allow [the plaintiff] to have another opportunity to plead a cognizable case, if such a case can be made."). However,
Jacquez, 801 F.2d at 792. Therefore, where the pleadings do not state a cognizable claim but, "when viewed under the individual circumstances of the case, demonstrate that the plaintiff has pleaded his best case," there is no need to remand for further pleadings. Id. at 793; see also Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir.1985) (upholding the dismissal of a § 1983 action where "the specific allegations of the amended complaint constitute the plaintiffs' best case for demonstrating that [the defendant] acted outside the scope of ... immunity").
In this case, there is no intimation that Schultea's complaint constitutes his best case.
The Defendants also contest the district court's denial of their motion to dismiss Schultea's First Amendment claim. Schultea contends that the Defendants reassigned him from police chief to assistant chief in retaliation for his reporting possible criminal acts by Wood to the TDPS. We review de novo the legal question whether Schultea's allegations state a valid claim of retaliation. Caine v. Hardy, 943 F.2d 1406, 1415 (5th Cir.1991) (en banc), cert. denied, ___ U.S. ___, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992).
To assert a retaliation claim cognizable under the First Amendment, a plaintiff must allege facts demonstrating that his speech involved a matter of public concern.
In light of these principles, Schultea's letters to the TDPS can serve as the basis for a claim that he was reassigned for exercising his First Amendment rights. Although Schultea made no effort to communicate the contents of the letters to the public, "[a] public employee who engages in whistleblowing does not `forfeit his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.'" Brown, 804 F.2d at 337 (quoting Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 696, 58 L.Ed.2d 619 (1979)). More importantly, however, the pleadings demonstrate that Schultea's letters relate to a matter of public concern — the possibly criminal acts committed by a public official. See Brawner v. City of Richardson, 855 F.2d 187, 191 (5th Cir.1988) (letter containing "serious allegations of possible police misconduct" related to a matter of public concern where letter was sent to the police chief, mayor, city council members, and reporters at a local paper); Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988) ("Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials, in terms of content, clearly concerns matters of public import."); Brown, 804 F.2d at 327 (reports of possible financial improprieties by a public employee related to a matter of public concern). Consequently, Schultea has alleged the violation of a constitutional right.
We must next determine whether the constitutional right asserted by Schultea was clearly established at the time the Defendants acted. See Siegert, 500 U.S. at 231, 111 S.Ct. at 1793. "A right will be considered clearly established only when its contours are sufficiently clear so that a reasonable official would understand that what he is doing violates that right." Salas, 980 F.2d at 310. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635,
The Defendants correctly contend that the letters written by Schultea indicate that Schultea spoke not as a citizen, but rather as a law enforcement employee of the City who was reporting possible criminal activity to the proper state agency.
For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND this case for further proceedings consistent with this opinion.
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.
BY THE COURT:
A majority of the Judges in active service, on the Court's own motion, having determined to have this case reheard en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 754 n. 3 (5th Cir.1986) (citing cases), aff'd in relevant part and remanded in part, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).
The Defendants, however, do not contend that Schultea's letters should not be considered "speech" within the meaning of the First Amendment, nor do they contend that the pleadings demonstrate that the balance must be struck in favor of the City. Accordingly, we do not consider the "balancing the interests" requirement. Moreover, although the Defendants do contend that Schultea's speech did not motivate their decision to reassign him, the causation issue is not a legal issue for the court to resolve, but instead must be presented to a jury if the plaintiff overcomes the threshold hurdles. See Knowlton, 957 F.2d at 1177-78 & n. 6; Couglin v. Lee, 946 F.2d 1152, 1157 (5th Cir.1991).
Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987).