845 F.3d 580 (5th Cir. 2016), 15-40836, Anderson v. Valdez

Docket Nº:15-40836
Citation:845 F.3d 580
Opinion Judge:WIENER, Circuit Judge
Party Name:BRUCE M. ANDERSON, Plaintiff - Appellee v. ROGELIO VALDEZ, In his Individual and Official Capacities, Defendant - Appellant
Attorney:For BRUCE M. ANDERSON, Plaintiff - Appellee: Lawrence Morales, II, Esq., Allison Sarah Hartry, Morales Law Firm, P.C., San Antonio, TX. For ROGELIO VALDEZ, In his Individual and Official Capacities, Defendant - Appellant: Eric Alan Hudson, Assistant Attorney General, Office of the Attorney Genera...
Judge Panel:Before JONES, WIENER, and HIGGINSON, Circuit Judges. JONES, Circuit Judge, dissenting. JONES, Circuit Judge, dissenting:
Case Date:November 09, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 580

845 F.3d 580 (5th Cir. 2016)

BRUCE M. ANDERSON, Plaintiff - Appellee

v.

ROGELIO VALDEZ, In his Individual and Official Capacities, Defendant - Appellant

No. 15-40836

United States Court of Appeals, Fifth Circuit

November 9, 2016

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Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1.

Appeals from the United States District Court for the Southern District of Texas. USDC No. 2:14-CV-426.

For BRUCE M. ANDERSON, Plaintiff - Appellee: Lawrence Morales, II, Esq., Allison Sarah Hartry, Morales Law Firm, P.C., San Antonio, TX.

For ROGELIO VALDEZ, In his Individual and Official Capacities, Defendant - Appellant: Eric Alan Hudson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX.

Before JONES, WIENER, and HIGGINSON, Circuit Judges. JONES, Circuit Judge, dissenting.

OPINION

Page 586

WIENER, Circuit Judge[*]

Plaintiff-Appellee Bruce M. Anderson brought this action against Defendant-Appellant, Chief Justice Rogelio Valdez of the Texas Thirteenth Court of Appeals (" Thirteenth Court" ), asserting an individual and official capacity claim under 42 U.S.C. § 1983. Anderson alleges that, after he sent a letter to the Texas Supreme Court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by Chief Justice Valdez, Valdez prevented another justice on the Thirteenth Court from hiring Anderson as a " briefing attorney," viz., a law clerk. He further alleges that, in so doing, Valdez retaliated against him for exercising his right to free speech under the First Amendment. Valdez moved to dismiss, asserting that Anderson had failed to state a claim and that Valdez is entitled to qualified immunity. The district court denied the motion, and Valdez timely filed an interlocutory appeal pursuant to the collateral order doctrine.

I.

Facts & Proceedings

A.

Facts

Anderson, who has been licensed to practice law in the state of Texas since 1984, served as an assistant district attorney in Hidalgo County before being hired as a briefing attorney at the Thirteenth Court in 1988. Anderson alleges that, " [b]ecause of [his] productivity and success," 1 he was later promoted to the position of senior briefing attorney and then to that of research attorney. In 1996, J. Bonner Dorsey, another justice on the Thirteenth Court, hired Anderson as a staff attorney. Justice Dorsey retired in 2002, after which Anderson left the court to serve as an assistant district attorney, this time in Nueces County.

Early in 2007, Rose Vela, yet another justice of the Thirteenth Court, hired Anderson as her briefing attorney. He remained in that position until she retired in late 2012. Anderson alleges that, as Justice Vela's briefing attorney, his " job duties included researching and writing memoranda on appeals and original proceedings pending before the Thirteenth Court, participating in case conferences, making recommendations to Justice Vela regarding pending motions, and performing routine administrative duties." He expressly alleges that his " official duties" did not include reporting judicial malfeasance by a justice on that court to the Texas Supreme Court or to the State Commission on Judicial Conduct.

According to Anderson, " [i]n early 2012, Justice Vela asked Anderson to come into her office for a meeting." " During this meeting, [she] told Anderson that she had

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concerns about the conduct of . . . [Chief Justice] Valdez." Specifically, " Vela told Anderson that she had examined the [Thirteenth] Court's financial records concerning its Filing Fee Fund and . . . Valdez's campaign finance records, and concluded that . . . Valdez had been obtaining double reimbursements from both the [Thirteenth] Court's Filing Fee Fund and his political campaign for the same travel expenses." She explained that " [t]hese records demonstrated that, on ten different occasions, [Valdez] posted the same travel expenses to both his political campaign and the [Thirteenth] Court's Filing Fee Fund." " Because of Anderson's experience in criminal law, Justice Vela asked Anderson whether, in Anderson's personal opinion, Valdez's conduct violated any [Texas] laws." He told her that he believed it had. Vela, however, " did not report, nor ask Anderson to report, [Valdez] to the authorities."

But Anderson alleges that he " was disturbed by the possibility that [Valdez, the chief justice,] had violated Texas law," so he sent a letter " on his own initiative" to Wallace Jefferson, then the chief justice of the Texas Supreme Court, in late 2012. Anderson asserts that, in that letter, he told Chief Justice Jefferson " that he had 'concerns [about] the possible violation of the Texas Penal Code by . . . Valdez' . . . . and that . . . he 'did not know who else to report it to.'" He asked Chief Justice Jefferson to provide him with the name of the individual or entity " responsible for investigating such allegations" and " to keep the letter confidential because [he] was concerned that he would be retaliated against if anyone at the Thirteenth Court . . . learned that he 'was revealing possible damaging information about . . . Valdez's handling of the court's finances.'"

About one week later, Jennifer L. Cafferty, general counsel to the Texas Supreme Court, responded to Anderson's letter to Chief Justice Jefferson, " inform[ing] him that his concerns about . . . Valdez may be reported to the State Commission on Judicial Conduct and/or local law enforcement." A week or so after that, " Anderson sent a letter to the State Commission on Judicial Conduct." The letter to the Commission was " nearly identical" to that he had sent to Chief Justice Jefferson. The commission responded a few weeks later, " indicat[ing] that it would commence an investigation into the allegations contained in Anderson's letter" (that is, the disciplinary complaint).

In early 2013, Royce LeMoine, an investigator with the Commission, contacted Vela, who had since retired as a justice, " to inquire whether she had information relating to [Valdez's] charging duplicate expenses to both the taxpayer-funded account of the Thirteenth Court and his political campaign fund." Vela responded to LeMoine soon after and " provided him with various documents supporting her belief that [Valdez] had obtained double reimbursements." The Commission " then referred the matter" to the district attorney in Travis County " for potential prosecution." (As of early 2015, the Commission's investigation was still " ongoing." )

Early in 2014, Anderson applied to Justice Gregory T. Perkes, also on the Thirteenth Court, to serve as his senior briefing attorney. On May 2, 2014, Anderson interviewed with Perkes. Anderson alleges that Perkes told him that " he was the most qualified of all the applicants" and that " 'the job [was his] if [he] want[ed] it.'" Anderson says that he " quickly replied," telling Perkes that he would " take it." Anderson stresses that " Perkes and [he] then agreed that [he] would start on May 12" and also agreed on his compensation. He also indicates that, soon afterward, Perkes e-mailed the other justices " to inform

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them of his hiring decision, stating 'I am hiring Bruce Anderson as my Senior Staff Attorney.'"

Anderson asserts that " the [Thirteenth] Court's practice and procedure . . . allow[ed] each justice to mak[e] all [their own] hiring decisions related to their individual chambers" and there had been no " other occasion when one [justice] was permitted to interfere with another [justice]'s hiring decisions." Anderson further asserts that, despite this, " [Valdez] told all of the [j]ustices not to allow Anderson to work for Justice Perkes." He said that he did so " because Anderson had filed a complaint against [him] with the State Commission on Judicial Conduct." After Valdez became aware that " Perkes had hired Anderson," Valdez " began searching for excuses to interfere with Anderson's hiring." This included " ask[ing] a [Thirteenth Court] employee to research [the] opinions" Anderson had written " while he worked for the Thirteenth Court" and to " look into the other applicants for the position" with Perkes. " Valdez [also] convened a meeting, wherein he asked all six justices on the Thirteenth Court of Appeals to vote on whether Anderson should be permitted to work for Justice Perkes."

Anderson contends that, on May 8, several days before Anderson was to start working for Perkes, he " received a call from an agent of the Thirteenth Court, who informed him that despite his acceptance of Justice Perkes's offer on May 2, [he] did not have a job with the Court." Although " [t]he agent did not provide any reason . . ., [i]t [was] clear" that Valdez " had knowledge that Anderson [had] filed a complaint against [him] with the State Commission on Judicial Conduct and that [Valdez] interfered in Anderson's hiring because of the [disciplinary] complaint." In an e-mail, Valdez told staff at the Thirteenth Court to " call [him] to address [ his ] decision on [Anderson]." The following day, May 9, " Justice Perkes texted former Justice Vela, '[Valdez] went to war over Bruce [Anderson] and all of the rest of the justices cowtowed to [his] wishes.'" When Vela asked the reason, " Justice Perkes responded that 'the only thing I can think of is that he got wind of [Anderson] and the investigation.'"

B.

Proceedings

Anderson filed this suit against Valdez in his individual and official...

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