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Howell v. Town of Ball

United States District Court, W.D. Louisiana, Alexandria Division

August 16, 2017

THOMAS R. HOWELL, Plaintiff
v.
TOWN OF BALL, Defendants

          MEMORANDUM ORDER

          PEREZ-MONTES, MAGISTRATE JUDGE

         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.

         I. Background

         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 “disputed issues”).

         Defendant maintains the disputed issues were not resolved by the Fifth Circuit, as no cross-motion for summary judgment was pending. According to 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.

         II. 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 at 225).

         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 ‚Äúreported municipal corruption to outside law enforcement agencies . . . . because the plaintiff failed to ...


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