827 F.3d 515 (5th Cir. 2016), 15-30552, Howell v. Town of Ball

Docket Nº:15-30552
Citation:827 F.3d 515
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:THOMAS R. HOWELL, Plaintiff - Appellant Cross-Appellee v. TOWN OF BALL, Defendant - Appellee Cross-Appellant DANIEL CALDWELL, in his official capacity as Police Chief for the Town of Ball; ROGER TONEY, in his official capacity as former Mayor of the Town of Ball; CURTIS ROBERTSON, in his official capacity as Alderman of the Town of Ball, also...
Attorney:For THOMAS R. HOWELL, Plaintiff - Appellant Cross-Appellee: Daniel E. Broussard, Jr., Esq., Broussard, Halcomb & Vizzier, Alexandria, LA. For TOWN OF BALL, Defendant - Appellee Cross-Appellant: Joy C. Rabalais, John Fayne Wilkes, III, Borne, Wilkes, Rabalais, L.L.C., Lafayette, LA. For DANIEL CAL...
Judge Panel:Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
Case Date:July 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 515

827 F.3d 515 (5th Cir. 2016)

THOMAS R. HOWELL, Plaintiff - Appellant Cross-Appellee

v.

TOWN OF BALL, Defendant - Appellee Cross-Appellant

DANIEL CALDWELL, in his official capacity as Police Chief for the Town of Ball; ROGER TONEY, in his official capacity as former Mayor of the Town of Ball; CURTIS ROBERTSON, in his official capacity as Alderman of the Town of Ball, also known as Buster Robertson; WILLIE BISHOP, in her official capacity as Alderman of the Town of Ball; JERRY GIDDINGS, in his official capacity as Alderman of the Town of Ball; CHRIS COVINGTON, in her official capacity as Alderman of the Town of Ball; GINNY POTEET, in her official capacity as Alderman of the Town of Ball; ROY E. HEBRON, Defendants - Appellees

No. 15-30552

United States Court of Appeals, Fifth Circuit

July 1, 2016

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Western District of Louisiana.

AFFIRMED in part; DISMISSED in part; VACATED and REVERSED in part; REMANDED.

For THOMAS R. HOWELL, Plaintiff - Appellant Cross-Appellee: Daniel E. Broussard, Jr., Esq., Broussard, Halcomb & Vizzier, Alexandria, LA.

For TOWN OF BALL, Defendant - Appellee Cross-Appellant: Joy C. Rabalais, John Fayne Wilkes, III, Borne, Wilkes, Rabalais, L.L.C., Lafayette, LA.

For DANIEL CALDWELL, in his official capacity as Police Chief for the Town of Ball, Defendant - Appellee: Randall B. Keiser, Keiser Law Firm, Alexandria, LA.

For ROGER TONEY, in his official capacity as former Mayor of the Town of Ball, CURTIS ROBERTSON, in his official capacity as Alderman of the Town of Ball, also known as Buster Robertson, WILLIE BISHOP, in her official capacity as Alderman of the Town of Ball, JERRY GIDDINGS, in his official capacity as Alderman of the Town of Ball, CHRIS COVINGTON, in her official capacity as Alderman of the Town of Ball, GINNY POTEET, in her official capacity as Alderman of the Town of Ball, Defendants - Appellees: Joy C. Rabalais, John Fayne Wilkes, III, Borne, Wilkes, Rabalais, L.L.C., Lafayette, LA.

For ROY E. HEBRON, Defendant - Appellee: John Scott Thomas, Esq., LA Municipal Association, Baton Rouge, LA.

Before REAVLEY, JOLLY, and ELROD, Circuit Judges.

OPINION

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E. GRADY JOLLY, Circuit Judge:

Thomas Howell, a former police officer for the town of Ball, Louisiana, brought this action against the town of Ball and several individual defendants. Howell alleged that the defendants violated his First Amendment rights when he was fired for cooperating with an FBI investigation of public corruption. Howell also asserted a claim under the False Claims Act, 31 U.S.C. § 3730(h), alleging that he was fired in violation of the Act's whistleblower protections.

The district court, through a series of rulings on 12(b)(6) motions and motions for summary judgment, dismissed Howell's First Amendment retaliation claims against all defendants, and dismissed Howell's FCA claims against all individual defendants; however, the court denied summary judgment with respect to the lone

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remaining FCA claim against the town of Ball. The district court, under Fed.R.Civ.P. 54(b), certified its judgment as " final" with respect to all dismissed claims. Accordingly, Howell appeals the grant of summary judgment dismissing his First Amendment retaliation claims against all defendants and dismissing his FCA claims against the individual defendants. The town of Ball cross-appeals the denial of summary judgment with respect to the FCA claim against it.

We find that the district court erred in holding that Howell's involvement in the FBI investigation was not entitled to First Amendment protection. Although we hold that Howell asserts a violation of his right of free speech, we further hold that the right at issue was not " clearly established" at the time of his discharge. The district court's dismissal of the individual defendants on the basis of qualified immunity is therefore affirmed. We reverse and vacate the grant of summary judgment for the town of Ball, however, because Howell has demonstrated a viable claim of municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Moreover, we dismiss the town of Ball's cross-appeal for lack of appellate jurisdiction. Finally, we affirm the district court's dismissal of the FCA claims against the individual defendants.

I.

Thomas Howell is a former police officer for the town of Ball, Louisiana. In 2008, while serving as a police sergeant, Howell became aware that Ball's mayor, Roy Hebron, had fraudulently obtained disaster recovery funds from the Federal Emergency Management Agency (" FEMA" ). Several other prominent town officials were also implicated in the scheme, including then-Police Chief Jay Barber. Howell, through a fellow police officer, relayed to FBI Agent Robert Deaton that he wished to share information regarding the FEMA fraud. Soon thereafter, Deaton contacted Howell by telephone. Howell met with Agent Deaton and gave information regarding the town officials' FEMA relief applications. Howell also agreed to become a confidential informant for the FBI. He participated in the investigation by wearing a wire and secretly recording conversations with Hebron and other municipal employees, including at least one fellow police officer.

The investigation was successful. On September 25, 2009, Mayor Hebron and four other Ball employees, including Police Chief Jay Barber, were indicted for crimes related to the FEMA fraud. Defendant Daniel Caldwell became the new police chief. Caldwell later learned of Howell's involvement in the FBI investigation. According to Howell, Caldwell began to harass him in retaliation for helping with the FBI investigation. Caldwell frequently would ask Howell during work-related conversations whether he was " wearing a wire," and on one occasion insisted that Howell unbutton his shirt to confirm that he was not. Caldwell also told Howell that he did not trust him because of his involvement in the FBI investigation.

In May 2011, Howell heard rumors that Caldwell started a departmental investigation into allegations that Howell had stolen a USB flash drive from a coworker's foot locker. Howell visited Caldwell at his home to ask him whether such an investigation was, in fact, being conducted. Caldwell confirmed that there was such an investigation.[1] Howell then engaged in what he

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calls a " heated discussion" with Caldwell regarding the true motivations behind the investigation. The conversation did not end well for Howell. He lost his job.

After this event, the Board of Aldermen conducted a hearing on Howell's employment status. During the session, Caldwell recommended that Howell be discharged for insubordinate conduct, and recounted his confrontation with Howell.2 The Board then allowed Howell an opportunity to speak. Howell told the Board that he considered Caldwell's action to be " revenge" for helping with the FBI investigation. After hearing from Howell, the Board voted unanimously to end Howell's employment with the Ball Police Department.

On April 20, 2012, Howell filed suit against the town of Ball, Caldwell, former Mayor Hebron, Mayor Toney, and the individual members of the Board of Aldermen: Curtis Robertson, Willie Bishop, Jerry Giddings, Chris Covington, and Genny Poteet (collectively, the " Board defendants" ). Howell alleged that the defendants violated his First Amendment rights when they fired him for providing information to the FBI, and for otherwise participating in the FBI investigation as a confidential informant. Howell also asserted a claim under the False Claims Act, alleging that he was fired for participating in activity protected under the statute.

In September and December 2012, the district court granted the individual defendants' motions to dismiss the FCA claims, reasoning that the FCA created a cause of action against only a plaintiff's employer. On March 20, 2014, the district court granted summary judgment on the First Amendment claims against Police Chief Caldwell. On March 3, 2015, the district court granted summary judgment against Howell's remaining First Amendment retaliation claims. The district court, however, denied summary judgment with respect to the FCA claim against the town of Ball itself. At the request of the parties, the district court certified its judgment under Fed.R.Civ.P. 54(b), as " final" with respect to all dismissed claims, thus allowing for the instant appeal.

II.

As we have earlier said, the district court dismissed Howell's claims through a combination of rulings on motions to dismiss for failure to state a claim and motions for summary judgment. We review de novo a district court's dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008). We take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff, and ask whether the pleadings contain " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

With respect to the district court's grant of summary judgment, " [w]e review the grant of a motion for summary judgment de novo, applying the same standard as the district court." Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010)...

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