Howell v. Town of Ball et al
MEMORANDUM ORDER granting in part and denying in part 196 Motion in Limine. The proposed jury instructions submission deadline is EXTENDED to 8/24/2017. Signed by Magistrate Judge Joseph H L Perez-Montes on 8/16/2017. (crt,Tice, Y)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
THOMAS R. HOWELL,
CIVIL ACTION NO. 1:12-CV-00951
MAGISTRATE JUDGE PEREZ-MONTES
Before the Court is an Oral Motion in Limine (Doc. No. 196) asserted by
Defendants. Plaintiff Thomas R. Howell (“Howell”) opposes the motion. For the
reasons detailed below, Defendants’ Motion will be granted in part and denied in part.
Defendants seek a ruling that two disputed points of fact may be raised at trial
because they were not definitively resolved by a July 1, 2016 ruling of the United
States Court of Appeals for the Fifth Circuit. See Howell v. Town of Ball, 827 F.3d
515, 520 (5th Cir.2016), cert. denied sub nom. Town of Ball, La. v. Howell, 137 S.Ct.
815, 196 L.Ed.2d 600 (2017). The points of fact are listed in the parties’ Pretrial
Stipulations as follows: (1) “Whether cooperating with outside agencies, such as the
FBI, was part of plaintiff’s ordinary job duties”; and (2) “Whether plaintiff was
speaking as a private citizen or pursuant to his ordinary job duties as a public
employee when he cooperated with the FBI” (hereinafter, for ease of reference, the
Defendant maintains the disputed issues were not resolved by the Fifth
Circuit, as no cross-motion for summary judgment was pending.
Defendants, the disputed issues therefore remain triable. Howell argues the Fifth
Circuit ruled upon the disputed issues, foreclosing further litigation under the “law
of the case” doctrine.
Law and Analysis
“‘The law of the case doctrine . . . generally precludes reexamination of issues
of law or fact decided on appeal, either by the district court on remand or by the
appellate court itself on a subsequent appeal.’” Alpha/Omega Ins. Servs., Inc. v.
Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (quoting Todd Shipyards
Corp. v. Auto Transp., 763 F.2d 745, 750 (5th Cir.1985). The “mandate rule” – a
corollary to the law of the case doctrine – provides that, absent an exception to the
law of the case doctrine, a district court may not deviate from issues “expressly or
impliedly decided by the appellate court.” Fuhrman v. Dretke, 442 F.3d 893, 897 (5th
Cir. 2006) (quoting United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)); Whitaker
v. Collier, 862 F.3d 490, 506 (5th Cir. 2017) (“A district court on remand ‘must
implement both the letter and the spirit of the appellate court's mandate and may
not disregard the explicit directives of that court.’”). “Exceptions to the law of the
case doctrine allow reexamination only if ‘(i) the evidence on a subsequent trial was
substantially different, (ii) controlling authority has since made a contrary decision
of the law applicable to such issues, or (iii) the decision was clearly erroneous and
would work a manifest injustice.’” Fuhrman, 442 F.3d at 897 (quoting United States
v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998)).
Although its broad purpose is to bring litigation to an end, “[t]he [law of the
case] doctrine's reach does have its limits.” Alpha/Omega Ins. Servs., Inc., 272 F.3d
at 279. Specifically, “unlike res judicata, the law of the case doctrine applies only to
issues that were actually decided, rather than all questions in the case that might
have been decided, but were not.” Id. Nonetheless, “the issues need not have been
explicitly decided; the doctrine also applies to those issues decided by ‘necessary
implication.’” Id. (quoting In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). This means
that “even when issues have not been expressly addressed in a prior decision, if those
matters were ‘fully briefed to the appellate court and . . . necessary predicates to the
[court's] ability to address the issue or issues specifically discussed, [those issues] are
deemed to have been decided tacitly or implicitly, and their disposition is law of the
case.’” Alpha/Omega Ins. Servs., Inc., 272 F.3d at 279 (quoting In re Felt, 255 F.3d
In this case, the District Judge granted Defendants’ Motion for Summary
Judgment as to Howell’s First Amendment retaliation claims. Howell did not file a
cross-motion for summary judgment; he simply opposed Defendants’ motion. In his
opposition, Howell requested that Defendants’ motion be denied – not that the
District Judge decide the issue in his favor. (Doc. 113, p. 22).
The District Judge reasoned as follows:
In this case, Plaintiff asserts that he was approached by the FBI and
asked to wear a wire as a confidential informant, providing critical
evidence in an ongoing fraud investigation. While Plaintiff did not
instigate his communications with the FBI, it is clear to the court that
his role as an informant is owed to his employment as a police officer for
the Town of Ball. Plaintiff was, himself, a recipient of fraudulently
obtained FEMA funds because of his status as a public employee and it
appears that this leverage may have factored into his role as an
informant, along with the access to Mayor Hebron and others that his
employment certainly provided. As argued by Defendants, Plaintiff has
a duty to “prevent and detect crime” which can reasonably be said to
include cooperating with the FBI when called upon. The facts of this
case, taken as a whole, demonstrate that, but for Plaintiff’s public
employment, he would not have been involved in the Town of Ball’s
fraudulent FEMA claims and, consequently, would not have been
involved in the FBI investigation.
Accordingly, the court finds that, based upon the application of the
jurisprudence to the facts of this particular case, Plaintiff was not
engaged in public speech as a matter of law when he acted as a
confidential informant for the FBI in its investigation of FEMA fraud by
Town of Ball officials.
(Doc. 149, pp. 13-14).
Based upon this finding, and noting that governing
jurisprudence on this issue was “evolving,” the District Judge concluded that Howell’s
First Amendment retaliation claims against all defendants should be dismissed. The
District Judge further concluded that Howell’s First Amendment retaliation claims
against the individual Defendants should nevertheless be dismissed, because the
individual Defendants were entitled to qualified immunity.
The Fifth Circuit reversed, noting that the central issue was “whether the
plaintiff was speaking as a citizen disassociated with his public duties, or whether
the plaintiff was speaking in furtherance of the duties of his or her public
employment.” Howell, 827 F.3d at 523. The Court cited and discussed Gibson v.
Kilpatrick, 773 F.3d 661 (5th Cir. 2014), a decision applying qualified immunity and
dismissing a fired police officer’s claims for retaliation after he “reported municipal
corruption to outside law enforcement agencies . . . . because the plaintiff failed to
offer evidence clarifying whether he made the reports as a private citizen instead of
in furtherance of his ordinary duties as police chief.” Id. at 523.
Applying this case and others, the Fifth Circuit analyzed the record as follows:
Howell has offered evidence that his involvement in the FBI
investigation was outside the ordinary scope his professional duties. . . .
Howell's statements to the FBI were made outside the normal chain of
command and without the knowledge or permission of anyone else in the
police department. . . . Indeed, the confidential nature of Howell's speech
alone suggests that it was not part of his “ordinary” professional duties;
the FBI did not ask for any assistance from the Ball Police Department,
and Howell was forbidden from telling anyone at the department that
he was aiding the FBI by recording town officials' conversations, since
doing so would have compromised the investigation.
In an attempt to downplay the unusual circumstances surrounding
Howell's cooperation with the FBI, the defendants point only to the
judicially established definition of a Louisiana police officer's duties. See
Smith on Behalf of Smith v. City of Kenner, 428 So.2d 1171, 1174 (La.
App. 5 Cir. 1983) (stating that a police officer is responsible for
“maintaining peace and order, preventing and detecting crime, and
enforcing the law” (internal quotation marks omitted)). The defendants
contend that, embedded within the general duty to “detect and prevent
crime,” is the specific obligation to cooperate with outside law
enforcement agencies regarding investigations into public corruption.
That may or may not be plausible as a generality. But such general,
implicit assumptions are not dispositive regarding the scope of a public
employee's “ordinary” job duties, because such broad assumptions fail to
describe with sufficient detail the day-to-day duties of a public
employee's job. Accordingly, we decline to infer solely from a Louisiana
law enforcement officer's non-specific duty to “detect and prevent crime”
that Howell, as a local police officer, had an ordinary duty to participate
secretly in an FBI investigation of coworkers' and superiors' illegal
In sum, Howell asserts that it was never part of his normal job duties,
secretly and without departmental authorization, to aid in an FBI
investigation of coworkers and superiors, much less to record
surreptitiously coworkers' conversations at the FBI's request. The
defendants offer no evidence to the contrary, other than the all~5~
encompassing, judicially established general description of a police
officer's professional responsibilities in the state of Louisiana, which, as
we have stated, cannot be considered dispositive. Accordingly, the
district court erred in finding that Howell's involvement in the FBI
investigation was in furtherance of his ordinary job duties, and thus was
not entitled to First Amendment protection.
Id. at 523–24 (emphasis added).
After addressing the claims of the individual Defendants, and the
unavailability of qualified immunity to the Town of Ball, the Fifth Circuit
summarized its ruling as follows:
In sum, we conclude that the district court erred in dismissing Howell's
constitutional claim against the town of Ball. We hold that, on the record
before us, Howell has shown that his involvement in the FBI
investigation was not within the ordinary perimeters of his job duties,
and thus that his involvement in the FBI investigation was a protected
First Amendment right. We have further held, however, that the district
court's error does not lead to relief for Howell against the individual
defendants. This is true because Howell's First Amendment claim was
not “clearly established” at the time of his discharge. Thus, the
individual defendants are entitled to qualified immunity, and the
district court properly dismissed Howell's claim against each of them.
Howell's First Amendment claim against the town of Ball, however,
presents a different standard of review because qualified immunity is
not available to a municipality. Accordingly, we hold that Howell has
offered evidence creating a genuine dispute of material fact regarding
whether the town of Ball, acting through its official policy maker, the
Board of Aldermen, is liable for the discharge of Howell in retaliation for
his involvement in the FBI investigation, either through its own
motivation or through ratification of Police Chief Caldwell's motive. The
culpability of the Board is now a question for the appropriate fact finder,
and we remand the First Amendment retaliation claim against the town
of Ball for proceedings not inconsistent with this opinion.
Id. at 528–29.
Howell argues that the Fifth Circuit decided – in definitive and binding fashion
– the propositions contrary to Defendants’ positions in the motion for summary
judgment: that in cooperating with the FBI, Howell was not performing his ordinary
job duties and was instead speaking as a private citizen outside his ordinary job
To Howell’s point, several statements in the opinion seem to emphatically favor
“We find that the district court erred in holding that Howell's involvement in
the FBI investigation was not entitled to First Amendment protection. . . .
[W]e hold that Howell asserts a violation of his right of free speech . . . .”
“[T]he district court erred in finding that Howell's involvement in the FBI
investigation was in furtherance of his ordinary job duties, and thus was not
entitled to First Amendment protection.”
“Howell has shown that his involvement in the FBI investigation was not
within the ordinary perimeters of his job duties, and thus that his involvement
in the FBI investigation was a protected First Amendment right.”
The Fifth Circuit’s ruling also seems to indicate that the remaining issue for trial
may be limited only to the question of the Board’s motivation in terminating Howell:
“Our review of the evidence demonstrates a genuine dispute of fact regarding
whether Howell's protected activity was a motivating factor in the Board's
decision to adopt Caldwell's recommendation.”
“[W]e hold that Howell has offered evidence creating a genuine dispute of
material fact regarding whether the town of Ball, acting through its official
policy maker, the Board of Aldermen, is liable for the discharge of Howell in
retaliation for his involvement in the FBI investigation, either through its own
motivation or through ratification of Police Chief Caldwell's motive. The
culpability of the Board is now a question for the appropriate fact finder, and
we remand the First Amendment retaliation claim against the town of Ball for
proceedings not inconsistent with this opinion.”
However, the Court’s decision simply did not declare summary judgment in
Howell’s favor on the disputed issues. Rather, the Court clarified that its decision
was premised upon “the record before” it.
Because the District Judge’s finding
foreclosed further consideration of the claims, the Fifth Circuit reasonably reached
that conclusion for purposes of its remaining analysis. It is true that the decision
repeatedly indicates a view – and a “holding” based upon the available record – that
Howell’s cooperation with the FBI was entitled to First Amendment protection. But
rather than specifically granting summary judgment to Howell, the court decided to
“vacate the district court's summary judgment for the town of Ball and remand for
proceedings not inconsistent with this opinion.” Howell, 827 F.3d at 528. Howell’s
argument that the Fifth Circuit effectively granted summary judgment in his favor
is simply absent from the opinion.
Defendants maintain that the Fifth Circuit could not have granted summary
judgment in Howell’s favor absent a cross-motion for summary judgment. That is
also incorrect. It is well-settled that “[a] district court may grant summary judgment,
sua sponte.” C & W Asset Acquisition LLC v. Knox, 104 Fed.Appx. 936, 938 (5th Cir.
2004) (quoting Mannesman Demag Corp. v. M/V Concert Express, 225 F.3d 587, 595
(5th Cir. 2000).
But critically, “[t]he power to enter summary judgment sua sponte is tempered
by the requirement to provide prior notice.” Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 28 F.3d 1388, 1397 (5th Cir.1994). Specifically, the
court should “provide adequate notice and an opportunity to respond akin to that
[formerly] required by FED. R. CIV. P. 56(c).” Knox, 104 Fed.Appx. at 938. One of
the central purposes of this requirement is to ensure that the non-movant has the
opportunity to present all evidence, and all factual and legal arguments, to raise a
genuine issue of material fact or otherwise rebut a contrary summary judgment. See
Trustmark Ins. Co. v. Kehler, CIV.A. 05-0515, 2005 WL 2170701, at *5 (W.D. La.
Sept. 6, 2005), aff'd, 198 Fed.Appx. 410 (5th Cir. 2006); see also Powell v. United
States, 849 F.2d 1576, 1579 (5th Cir 1988) (“Since a summary judgment forecloses
any future litigation of a case the district court must give proper notice to insure that
the nonmoving party had the opportunity to make every possible factual and legal
argument.”). The Fifth Circuit has applied this requirement even where the “nonmovant” is the party that originally filed a motion for summary judgment. See Knox,
104 Fed.Appx. at 938.
In this case, neither the District Judge nor the Fifth Circuit indicated that
Howell’s opposition to Defendants’ motion for summary judgment had been converted
into a cross-motion for summary judgment. Consideration of such a “converted crossmotion” – even if the District Judge could be said to have implicitly denied it – was
therefore simply not before the Fifth Circuit as part of Howell’s appeal. And the Fifth
Circuit did not make a sua sponte declaration indicating otherwise.
Further, neither the District Judge nor the Fifth Circuit indicated that
adequate notice for such a conversion had been provided. Defendants were certainly
aware that the District Judge and the Fifth Circuit were considering the disputed
issues. But Defendants requested summary judgment in their favor on the disputed
issues. Defendants were not on notice – before either court – that they may be facing
what would effectively be a ruling granting a cross-motion for summary judgment
declared sua sponte. Howell never requested that relief, and neither court specified
it was following that procedural avenue.
To be clear, Defendants likely would have presented all arguments and
evidence available in support of their own motion for summary judgment. The Court
could reasonably assume that Defendants have no additional evidence or arguments.
But that assumption is not dispositive. The Fifth Circuit’s notice requirement applies
under these circumstances, as explained above. It is possible, though unlikely, that
Defendants may have offered different or supplementary arguments or evidence to
counter a cross-motion for summary judgment.
It is further possible, and less
unlikely, that Defendants may offer different arguments and evidence at trial. In
either event, neither party specifically briefed or argued the merits of a summary
judgment motion in Howell’s favor. Nor can the Court be certain that they “fully
briefed” the matter of summary judgment for either party, and that additional
discovery, evidence, or argument would have changed the record.
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Finally, the Fifth Circuit also did not indicate that its “holding” was, in fact, a
summary judgment in Howell’s favor, or that the District Judge erred in not granting
summary judgment in Howell’s favor. Rather, the Fifth Circuit specified that its
decision was premised upon “the record before” it at that time. And the Fifth Circuit
ruled that the District Judge erred in granting summary judgment in Defendants’
favor. Howell, 827 F.3d at 528.
For these reasons, in the Court’s view, additional litigation regarding the
disputed issues is not “inconsistent” with the Fifth Circuit’s ruling. However, the
Court has carefully considered the possibility that its reading of the Fifth Circuit’s
decision is incorrect, and that the Fifth Circuit intended to foreclose further litigation
of the disputed issues. Given some of the statements in the Fifth Circuit’s opinion,
which do indicate a “holding” in Howell’s favor, that possibility is distinct.1 Even if
true, based upon the Fifth Circuit’s prior decisions, the Court can only conclude that
the Fifth Circuit would have erred in so ruling. Such an error would be an exception
to the law of the case doctrine, allowing additional litigation of the disputed issues.
Fuhrman, 442 F.3d at 897 (quoting United States v. Becerra, 155 F.3d 740, 752-53
(5th Cir. 1998)). This Court’s ruling would therefore be the same.
Because Howell’s opposition to Defendants’ motion for summary judgment was
not treated as a cross-motion for summary judgment, and because the Fifth Circuit
thus did not “actually decide” the disputed issues in Howell’s favor, the law of the
Once again, the Court views this “holding” as a conditional one based only upon the record before the Fifth Circuit,
intended only to provide a basis for the Fifth Circuit’s remaining analysis.
~ 11 ~
case doctrine does not bar litigation of those issues at the upcoming trial. Defendants’
Oral Motion in Limine is therefore GRANTED IN PART.
Critically, however, the “letter and spirit” of the Fifth Circuit’s decision – both
of which this Court is obliged to follow – do have other relevant implications. The
Fifth Circuit “held” that, “on the record before” it at the time of its decision, “Howell
has shown that his involvement in the FBI investigation was not within the ordinary
perimeters of his job duties, and thus that his involvement in the FBI investigation
was a protected First Amendment right.” Howell, 827 F.3d at 528–29. Absent some
modification to, or supplementation of, that record, this Court may be bound by the
Fifth Circuit’s holding as to the disputed issues. See Knox, 104 Fed.Appx. at 939
(“The failure to provide notice is harmless error ‘when the nonmovant has no
additional evidence or if all of the nonmovant's additional evidence is reviewed by the
appellate court and none of the evidence presents a genuine issue of material fact.’”)
(quoting Love v. Nat'l Med. Enters., 230 F.3d 765, 771, reh'g en banc denied, 239 F.3d
367 (5th Cir. 2000)). Therefore, Defendants’ Oral Motion in Limine is DENIED IN
PART to the extent it seeks license to present the same record that was before the
Fifth Circuit to the jury at trial. No less than seven days before trial, Defendants will
file a written notice indicating whether Defendants have additional arguments or
evidence not presented to the Fifth Circuit, and detailing any additional evidence or
arguments to be presented. The Court will revisit this ruling at that time.
Finally, the current deadline to submit proposed jury instructions is August
Because this decision will necessarily impact the proposed jury
~ 12 ~
instructions, the submission deadline is hereby EXTENDED to August 24, 2017. For
the time being, proposed jury instructions should address the disputed issues.
THUS DONE AND SIGNED in Alexandria, Louisiana, this _____ day of
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE
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