United States District Court, W.D. Louisiana, Alexandria Division
THOMAS R. HOWELL, Plaintiff
TOWN OF BALL, Defendants
PEREZ-MONTES, MAGISTRATE JUDGE
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.
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”).
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.
Law and Analysis
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)).
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).
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).
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
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.
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 ...