REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-50869
Summary Calendar.
Bettye WARNOCK, Plaintiff-Appellant,
v.
PECOS COUNTY, TEXAS, et al., Defendants,
Alex Gonzalez, Individually and in his Official Capacity as Pecos County District Judge; Brock Jones, Individually and in his Official Capacity as Pecos County District Judge, Defendants- Appellees.
July 3, 1997.
Appeal from the United States District Court for the Western District of Texas.
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
I.
Bettye Warnock, formerly auditor for Pecos County, brought
this § 1983 suit to recover damages and obtain prospective relief
from Pecos County and its two state district judges, Alex Gonzalez
and Brock Jones. She alleges that these judges violated her First
Amendment rights when they chose not to appoint her to a second
two-year term as county auditor after she brought to light
"violations of laws and administrative regulations of the State of
Texas and of the policies and ordinances of Pecos County, Texas."
1 She sued the judges in both their official and individual
capacities.
In an unsuccessful suit filed in Texas state court in May of
1993, she alleged that the county violated the Texas Whistleblower
Act, Tex.Rev.Civ. Stat. Ann. art. 6252-16a (West 1993) (currently
codified as amended at Tex. Local Gov't Code § 554.001 et seq.
(West 1994 & Supp.1997)). Although this statute allows a state
prosecutor to recover civil penalties from individual officials, it
does not permit private suits against officials acting in their
individual capacities. Tex.Rev.Civ. Stat. Ann. art. 6252-16a §
5(a); Tex. Local Gov't Code § 554.008. The county won a summary
judgment in the trial court, and the Texas Court of Appeals
affirmed.
Based on the whistleblowing suit, the district court below
held that Warnock was precluded from recovering against the county.
The district court dismissed the county with prejudice, and Warnock
did not appeal.
Warnock did, however, appeal the district court's further
conclusion that the Eleventh Amendment and qualified immunity
principles barred her claims against the two judges. We vacated
the judges' dismissals. Warnock v. Pecos County, 88 F.3d 341 (5th
Cir.1996). We instructed the district court on remand that the
Eleventh Amendment does not protect state officials acting in their
official capacities from claims for reinstatement and attorneys'
2 fees when they violate federal law. We also asked the court to
reconsider the issue of qualified immunity in light of our opinion
in Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc).
On remand, the district court once again dismissed the judges
in their official capacities, and Warnock has not appealed those
dismissals. With respect to the claims against the judges
individually, Warnock followed the Rule 7(a) procedure that we
outlined in Schultea. The judges filed a response in which they
argued that they were entitled to qualified immunity. Although the
county noted that it had already been dismissed, it filed a similar
pleading urging the court to dismiss the judges on the grounds of
qualified immunity.
Instead of deciding the immunity issue, the district court
granted summary judgment on the theory that Warnock's state suit
against the county precludes the present suit against the judges
individually.
II.
We cannot sanction this application of the doctrine of res
judicata. First, under Fed.R.Civ.P. 8(c), res judicata is an
affirmative defense that courts generally should not raise sua
sponte. Carbonell v. Louisiana Dept. of Health & Human Resources,
772 F.2d 185, 189 (5th Cir.1985). We have recognized two
exceptions, but neither applies here. The prior suit was not
brought in the Western District of Texas. And the district court
3 does not appear to have had all relevant records before it and to
have been confronted with "the demands of comity, continuity in the
law, and essential justice." Id.
Second, even if the court properly raised the issue of res
judicata, there was no identity of parties. Warnock did not sue
Judges Gonzalez and Jones in her state action. Nor was there
privity between the county and the judges in their individual
capacities. See Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir.)
(holding that a prior suit against a municipality does not bar a
subsequent suit against officials individually because
official-capacity and personal-capacity suits involve different
legal theories and defenses), cert. denied, 488 U.S. 856, 109 S.Ct.
147, 102 L.Ed.2d 118 (1988); Headley v. Bacon, 828 F.2d 1272,
1277-79 (8th Cir.1987) (distinguishing privity between principal
and agent from privity between a governmental entity and officials
sued in their individual capacities). See also Howell
Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) ("Res
judicata does not apply when the parties appear in one action in a
representative capacity and in a subsequent action in an individual
capacity." (citing Clark v. Amoco Production Co., 794 F.2d 967, 973
(5th Cir.1986))); Restatement (Second) of Judgments § 36(2) (1982)
("A party appearing in an action in one capacity, individual or
representative, is not thereby bound by or entitled to the benefits
of the rules of res judicata in a subsequent action in which he
4 appears in another capacity.").
III.
Judges Gonzalez and Jones invite us to affirm the dismissal by
reaching the issue of qualified immunity. Because the immunity
question would almost certainly arise before the district court,
and because we have access to all the relevant pleadings, we will
decide it. We conclude, however, that Warnock has defeated the
judges' immunity from discovery and thus that the judges' motion to
dismiss should be denied. We remand for further proceedings
consistent with this opinion.
A.
Warnock's Rule 7(a) reply lists dozens of violations of law
or fiscal improprieties committed by county officials or
compromising county funds. For each violation, Warnock indicates
the year in which the incident occurred; in many cases, she
indicates the month of the year. She also provides the names and
offices of the state and county officials to whom she reported the
violations. We have no trouble concluding that Warnock's Rule 7(a)
reply is sufficiently detailed to satisfy the heightened pleading
requirements that we reinforced in Schultea v. Wood, 47 F.3d 1427
(5th Cir.1995) (en banc).
A sample of Warnock's allegations shows that her claim is
sufficiently particularized. She asserts that she reported to
Judge Gonzalez's chambers in June of 1991 that his wife had
5 improperly used county phone services. The next month, she told
Judge Jones that the district attorney was holding forfeiture funds
unlawfully. In January of 1992, she brought to both judges'
attention alleged violations of Texas bidding statutes. She told
the county treasurer on several occasions about matters such as the
unauthorized release of pledged securities, incorrect amounts paid
to the state, illegal early releases of paychecks, and violations
of laws governing rapid deposits. She notified county officials of
violations of state statutes on travel reimbursements. She told
the commissioners court that its use of tax money for a prison
water tank was improper. The list goes on. This detailed Rule
7(a) reply "alleg[es] with particularity all material facts on
which [Warnock] contends [she] will establish [her] right to
recovery, which ... include[s] detailed facts supporting the
contention that the plea of immunity cannot be sustained." Elliott
v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985). See also Schultea,
47 F.3d at 1434 (embracing "the practical core" of Elliott ).
The judges contend that most of Warnock's detailed allegations
are irrelevant because only about a dozen involve reports to the
judges themselves. Given the context, however, we will not require
Warnock to plead the details of how Judges Gonzalez and Jones
learned about each report to various state and county officials.
The judges may not have known about every last report, but we can
suppose that their duty to decide whether to re-appoint Warnock to
6 the auditor's office led them to inquire into her communications
with entities such as the county treasurer's office, the county
attorney's office, and the commissioners court. See Siegert v.
Gilley, 500 U.S. 226, 236, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277
(1991) (Kennedy, J., concurring) (asserting that the requirement of
"specific, nonconclusory factual allegations" does not prevent a
plaintiff from relying on circumstantial evidence).
B.
In order to survive the judges' motion to dismiss, Warnock's
specific allegations must portray an objectively unreasonable
violation of clearly established First Amendment law. Siegert, 500
U.S. at 231, 111 S.Ct. at 1793; Burns-Toole v. Byrne, 11 F.3d
1270, 1274 (5th Cir.), cert. denied, 512 U.S. 1207, 114 S.Ct. 2680,
129 L.Ed.2d 814 (1994). We conclude that, as described in
Warnock's pleadings, the judges' decision not to re-appoint Warnock
violated the First Amendment. We further conclude that the
relevant First Amendment law was clearly established when the
judges made their decision in 1993 and that firing a Texas county
auditor for reporting violations of the law is objectively
unreasonable.1
For our purposes, there is no difference between firing and declining to re-appoint. See Branti v. Finkel, 445 U.S. 507, 512 n. 6, 100 S.Ct. 1287, 1291 n. 6, 63 L.Ed.2d 574 (1980) ("[T]he lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee's private political beliefs."); Elrod v. Burns, 427 U.S. 347, 359 n. 13, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976) (plurality opinion)
7 1.
Because Warnock is a public employee, her allegations must
survive a three-part test in order to state a violation of the
First Amendment. First, the relevant speech must involve a matter
of public concern. Second, her interest in commenting on the
matter of public concern must outweigh her employer's interest in
promoting efficiency. And third, her protected speech must have
motivated her public employer's decision to fire her. Connick v.
Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708
(1983) (citing Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968)); Wallace v. Texas Tech Univ., 80 F.3d
1042, 1050 (5th Cir.1996); Thompson v. City of Starkville, 901
F.2d 456, 460 (5th Cir.1990).
"There is perhaps no subset of "matters of public concern'
more important than bringing official misconduct to light." Davis
v. Ector County, 40 F.3d 777, 782 (5th Cir.1994). See also
(rejecting the notion that employees who accept partisan appointments have waived their right to bring a First Amendment suit when their political patrons lose power and a newly elected regime fires them based solely on party affiliation); Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir.1995) ("Both "firing' and "failing to hire' are "triggering personnel decision[s].' "), reh'g en banc granted (5th Cir. Aug. 25, 1995) and dismissed for lack of jurisdiction (5th Cir. Nov. 17, 1995); McBee v. Jim Hogg County, 730 F.2d 1009, 1015 (5th Cir.1984) (en banc) ("[T]he fact that the deputies were terminated by a "failure to rehire' rather than a "dismissal' is irrelevant to the question of whether they were impermissibly terminated for exercising First Amendment rights." (footnote omitted) (citing Branti )).
8 Connick, 461 U.S. at 149, 103 S.Ct. at 1691 (finding that improper
pressure on assistant district attorneys to work in political
campaigns is a matter of public concern). By reporting specific
wrongs and abuses within the county government, Warnock was
attempting to improve the quality of government. Her allegations
hardly suggest a merely personal concern for her working
conditions, job security, and the like. The content, context, and
form of Warnock's statements, see Thompson, 901 F.2d at 461-67,
indicate that they addressed issues necessarily of concern to the
public.
The defendants argue that Warnock was speaking as an employee
rather than as a citizen and thus that her public employer could
terminate her without regard to whether her speech involved matters
of public concern. In essence, they contend that they could fire
Warnock because it was her job to serve the public by investigating
governmental waste and abuse. Citing Connick, we have announced
that "our task is to decide whether the speech at issue in a
particular case was made primarily in the plaintiff's role as
citizen or primarily in his role as employee." Terrell v.
University of Texas System 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). But the plaintiff's statements in Terrell were tied to
a personal employment dispute. Terrell does not stand for the
proposition that an employee hired to make disinterested criticisms
9 of her employer loses the protection that the First Amendment
grants to those who speak out in the public interest. See Wallace,
80 F.3d at 1051 (indicating that "speech made in the role as
employee" can be of public concern when it "involv[es] the report
of corruption or wrongdoing to higher authorities"); Wilson v.
University of Texas Health Center, 973 F.2d 1263, 1269 (5th
Cir.1992) ("[T]he rule proposed by the defendants could ironically
facilitate the suppression of speech through a requirement that the
speech be made."), cert. denied, 507 U.S. 1004, 113 S.Ct. 1644, 123
L.Ed.2d 266 (1993).
In weighing the value of Warnock's speech against the county's
interest in efficiency, we generally focus on three factors: "(1)
whether the speech was likely to generate controversy and
disruption; (2) whether the speech impeded the general operation
of the department; and (3) whether the speech affected the working
relationships necessary to the proper functioning of ... County
administration." Davis, 40 F.3d at 783. These factors help us
determine when a worker's interest in protected speech fails to
match up to the public employer's interest in having the employee
contribute to the smooth operation of the workplace.
Warnock presents an unusual case because the Texas legislature
has assigned auditors the task of disrupting the workplace when its
smooth operation conflicts with legal requirements or compromises
the public's interest in fiscal responsibility. In other words,
10 Texas gives county auditors responsibility for guarding the public
purse and using the authority of the auditor's office to ensure
that local governments comply with the law. Under Texas Local
Government Code § 112.006(b), for example, "[t]he county auditor
shall see to the strict enforcement of the law governing county
finances." This involves "general oversight of the books and
records of a county, district, or state officer authorized or
required by law to receive or collect money or other property that
is intended for the use of the county or that belongs to the
county." Tex. Local Gov't Code § 112.006(a) (West 1988). Texas
law requires the approval of the county auditor before a county
pays any claim, bill, or account. Id. § 113.064(a). To make
auditors' examinations effective, the legislature has given county
auditors access to county records and accounts. Id. §§ 115.001-
115.021; id. § 115.0035 (Supp.1997). Because the auditor is
supposed to patrol county business and check any tendency toward
corruption or inefficiency, the auditor's duties are discretionary
rather than ministerial. Smith v. McCoy, 533 S.W.2d 457, 459
(Tex.Civ.App.—Dallas 1976, writ dism'd).
In the bulk of First Amendment cases brought by public
employees, the governmental employer has a legitimate interest in
terminating employees whose criticisms intrude on the workplace
harmony that tends to facilitate the efficient operation of
government functions. In this case, however, the statutes of the
11 State of Texas articulate an interest in stirring up controversy
when county auditors discover misappropriations of county funds.
Although Warnock's position was not merely ministerial, she was not
a "policymaker" hired to implement the agenda of the county or the
judges. As the statutory scheme shows, Warnock was to use her
discretion to scrutinize county expenditures, not to enable county
officials to spend money as they saw fit. The job of county
auditor, then, is not within "that narrow band of fragile
relationships requiring for job security loyalty at the expense of
unfettered speech." Gonzalez v. Benavides, 712 F.2d 142, 150 (5th
Cir.1983).
At this stage, of course, we are not in a position to
determine whether any misappropriations or other violations have
taken place. But if Warnock's allegations are true, and we say
nothing about that, Judges Gonzalez and Jones may not rely on the
county's interest in an efficient workplace. When a public
employer grants an employee the task of serving as ombudsman within
a particular field, it may not fire that employee for accurate and
thorough criticisms of the relevant governmental practices.
Finally, Warnock must show that her protected speech caused
Judges Gonzalez and Jones to decide not to re-appoint her. As we
have noted, the allegations, if believed, could support an
inference that the judges knew about the bulk of Warnock's reports.
We also conclude that evidence supporting these allegations could
12 sustain Warnock's burden of demonstrating that her effort to air
the county's fiscal problems was "a substantial or motivating
factor" in the judges' decision. Harrington v. Harris, 108 F.3d
598, 603 (5th Cir.1997) (citing Mt. Healthy City School Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d
471 (1977)). At this stage, it is difficult to know whether
Warnock had extensive auditing authority over Judges Gonzalez and
Jones and their court staff. On remand, resolution of the
causation issue may turn on whether the district judges had reason
to prefer a less inquisitive auditor. We decide only that Warnock
has raised an inference that the judges preferred a less aggressive
advocate for county fiscal responsibility.
An inference is just that. We do not know what discovery may
bring. We say only that Warnock's pleadings state a First
Amendment violation.
2.
We must next ask whether the judges' qualified immunity
protects them from having to answer Warnock's allegations. The
judges are entitled to immunity from suit if "reasonable public
officials could differ on the lawfulness of the [judges'] actions."
Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir.1996). "[G]overnment
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
13 which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
See also Anderson v. Creighton, 483 U.S. 635, 638-41, 107 S.Ct.
3034, 3038-40, 97 L.Ed.2d 523 (1987). The law in force at the time
of the violation must outline the contours of the rights allegedly
violated, or else qualified immunity would give public officials
little protection. See Anderson, 483 U.S. at 638-40, 107 S.Ct. at
3038-39. But "[t]his is not to say that an official action is
protected by qualified immunity unless the very action in question
has previously been held unlawful." Id. at 640, 107 S.Ct. at 3039.
Warnock's term ended on March 5, 1993.2 Case law prior to
that date contained many discussions of what sort of speech
implicates public concerns. Most importantly, the judges had the
advantage of our opinion in Wilson v. University of Texas Health
Center, 973 F.2d 1263, 1268-70 (5th Cir.1992), cert. denied, 507
U.S. 1004, 113 S.Ct. 1644, 123 L.Ed.2d 266 (1993), in which we
explained that a public employee can make a single statement both
as an employee and as a citizen. Like the plaintiff in Wilson, a
police officer who reported sexual abuse to her superiors, Warnock
"had a stake as an individual citizen in having [fiscal
At this stage in the proceedings, it is difficult to know when the judges made the decision that Warnock alleges violated the First Amendment. For the purposes of the motion to dismiss, we assume that March 5, 1993, is the relevant date. This assumption does not bar further factual or legal arguments about when the judges terminated Warnock.
14 irresponsibility] stopped, regardless of whether her reports also
coincided with her job responsibilities." Id. at 1270.
Furthermore, at the time of the judges' decision we had already
declared that public officials must "engage in McBee-Pickering-
Connick balancing before taking disciplinary action." Click v.
Copeland, 970 F.2d 106, 112 (5th Cir.1992). In light of the
purposes of Warnock's office, we conclude that First Amendment law
at the beginning of March of 1993 clearly established that county
officials may not terminate a county auditor for diligently
monitoring county finances and speaking out about genuine fiscal
problems.
Clearly established law will not defeat qualified immunity if
"an objectively reasonable view of the facts" might lead an
official not to realize that he was breaking the law. Matherne v.
Wilson, 851 F.2d 752, 756 (5th Cir.1988). But our consideration of
the judges' motion to dismiss does not present circumstances that
suggest a misunderstanding of the facts. According to Warnock's
particularized allegations, Judges Gonzalez and Jones had ample
information about her surveillance of public funds and based their
decision on what they knew about her aggressive enforcement
efforts. With discovery, the able district judge will be able to
take another look at the defense of qualified immunity and decide
if the case should proceed to trial.
IV.
15 The dismissals of Judges Gonzalez and Jones in their
individual capacities based on res judicata are REVERSED. We
instruct the district court to deny the judges' motion to dismiss
on grounds of qualified immunity and REMAND the case for further
proceedings.
REVERSED and REMANDED with instructions.