“As a general proposition . . . a plaintiff must identify a case that put the defendant on notice.” (citation modified)
How later courts described this case
- “As a general proposition . . . a plaintiff must identify a case that put the defendant on notice.” (citation modified)
Written by the judges who cited it.
The opinion
Case: 19-11325 Document: 53-1 Page: 1 Date Filed: 05/20/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
May 20, 2025
No. 19-11325
____________ Lyle W. Cayce
Clerk
James C. Wetherbe, PhD,
Plaintiff—Appellee,
versus
Texas Tech University System; Lance Nail, PhD, in his
individual capacity only; Margaret Williams, current Dean of Rawls
College of Business at Texas Tech University, in her official capacity,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:15-CV-119
______________________________
Before Dennis, Richman, and Haynes, Circuit Judges.
Priscilla Richman, Circuit Judge:
This is an interlocutory appeal from the district court’s denial of
qualified immunity. Professor James Wetherbe has long espoused anti-
tenure views and rejected tenure at several universities. In this lawsuit,
Wetherbe claims he was retaliated against for his anti-tenure views by the
then-dean of the business school at Texas Tech University, Lance Nail.
According to Wetherbe, once Nail became dean, he retaliated against him for
Case: 19-11325 Document: 53-1 Page: 2 Date Filed: 05/20/2025
No. 19-11325
(1) authoring several op-eds that criticized tenure and (2) op-eds written by
reporters that discussed Nail’s previous lawsuit against the university.
Wetherbe sued Nail under 42 U.S.C. § 1983, alleging his First
Amendment rights had been violated. He also sought injunctive and
declaratory relief against Margaret Williams, the current dean of the business
school. The district court denied the defendants’ second amended Rule
12(c) motion, holding that Wetherbe sufficiently alleged a constitutional
violation and that Nail’s actions were objectively unreasonable in light of
clearly established law. We conclude that the contours of First Amendment
law regarding retaliation were not clearly established at the time the events at
issue occurred. We therefore reverse and render judgment in favor of the
defendants on Wetherbe’s First Amendment retaliation claim.
I
In providing the factual background relevant to this case, we accept
the allegations in Wetherbe’s complaint as true. He is a business professor
who has taught, published, consulted, and presented extensively in his field
over the past several decades. Throughout his career, he has been known for
his anti-tenure views as he believes tenure is harmful because it is “an
obstacle to change” and is “more about job security than academic
freedom.” Wetherbe’s actions mirror his beliefs; he resigned tenure at the
University of Houston and the University of Minnesota and declined tenure
at the University of Memphis and at Texas Tech University (TTU).
In 2000, Wetherbe joined TTU as the Robert G. Stevenson Chair in
Information Technology. In the offer letter, TTU stated that it understood
Wetherbe “reject[s] tenure.” The appointment was initially for three years
but was renewable. Wetherbe held this position until 2014 when Nail refused
to extend it.
2
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No. 19-11325
Wetherbe served in many capacities at TTU. He routinely taught an
MBA communications course and advised MBA students. In addition, he
was part of the Dean’s Advisory Council and served as the Associate Dean
for Outreach.
In 2011, Wetherbe became a candidate for dean of TTU’s Rawls
College of Business. He alleges that although the search committee listed
him as one of the top four candidates, the Provost declined to interview him
because of his views on tenure. The position went to Nail, who was not one
of the original four candidates selected for an interview.
Wetherbe sued the Provost under 42 U.S.C. § 1983 for allegedly
retaliating against him for his anti-tenure speech during the search for a new
dean. In an interlocutory appeal, this court held that Wetherbe failed to state
a claim. 1
Not long after TTU selected Nail to serve as Dean over Wetherbe,
friction between the two ensued. Wetherbe contends part of this tension
related to his anti-tenure speech. From December 2012 to July 2013,
Wetherbe wrote several articles that critiqued tenure generally, and reporters
discussed his lawsuit against TTU in other articles. Wetherbe’s present
complaint alleges that in August 2013, Nail allegedly removed Wetherbe
from teaching the MBA communications course, falsely accused him of
sexual harassment, and replaced him as faculty advisor for the MBA student
association. Wetherbe published another article criticizing tenure, and Nail
revoked Wetherbe’s emeritus status for the Dean’s Advisory Council in
September 2013. In November 2013, a reporter published another piece
addressing the debate over tenure and Wetherbe’s lawsuit specifically. Over
approximately the following year and a half, Nail allegedly made false
_____________________
1
Wetherbe v. Smith (Wetherbe I), 593 F. App’x 323, 324 (5th Cir. 2014).
3
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financial misconduct claims against Wetherbe, directed him to discontinue
using a grant from Best Buy to fund one of his projects, refused to renew his
Stevenson Chair position, declined to reimburse one of his trips, and
informed him that he would be treated as a Professor of Practice for workload
purposes, which increased his teaching load by fifty percent. Wetherbe
claims that his removal from the MBA program triggered a twenty percent
reduction in his annual compensation, the denied use of the Best Buy grant
adversely affected his income by $50,000, and the loss of the Stevenson
Chair position cost him $90,000 in funding per year.
As of the filing of Wetherbe’s third amended complaint in 2019,
Wetherbe continued to publish about tenure, and reporters continued to
discuss his views on tenure and lawsuits against TTU. Nail was replaced as
dean in December 2015. Since then, Interim Dean Paul Goebel and Dean
Margaret Williams have not “engaged in new retaliation.”
Wetherbe sued Nail, TTU, and the new dean of the Rawls College of
Business for First Amendment retaliation based on his anti-tenure
publications and his prior lawsuit. The district court granted the defendants’
motion to dismiss for failure to state a claim, holding among other things, that
Wetherbe’s speech did not involve a matter of public concern. 2 On appeal,
Wetherbe abandoned his retaliation claim based on his prior lawsuits. 3 He
challenged only the district court’s dismissal of his claim pertaining to the
_____________________
2
Wetherbe v. Tex. Tech Univ. Sys., No. 5:15-CV-119-Y, 2016 WL 1273471, at *7
(N.D. Tex. Mar. 31, 2016), aff’d in part, rev’d in part and remanded, 699 F. App’x 297 (5th
Cir. 2017) (per curiam).
3
Wetherbe v. Tex. Tech Univ. Sys. (Wetherbe II), 699 F. App’x 297, 299 (5th Cir.
2017) (per curiam).
4
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No. 19-11325
anti-tenure publications. 4 In Wetherbe II, 5 we reversed the district court’s
dismissal in part, holding that Wetherbe’s anti-tenure speech was on a matter
of public concern. 6 However, we affirmed in part because Wetherbe
conceded that res judicata, collateral estoppel, and sovereign immunity
barred some of the claims and issues in his complaint. 7 We did not address
whether the law was clearly established that Wetherbe’s speech was on a
matter of public concern or any other qualified immunity issues. 8 The
district court had not addressed whether the law was clearly established,
either. 9
On remand, the district court denied the defendants’ second amended
Rule 12(c) motion, holding that Wetherbe sufficiently alleged a constitutional
violation and that Nail’s actions were objectively unreasonable in light of
clearly established law. The defendants timely appealed.
II
“A 12(c) motion for judgment on the pleadings is [] reviewed de
novo.” 10 When reviewing a district court’s denial of a Rule 12(c) motion, we
use the same standard as in Rule 12(b)(6) motions. 11 We ask whether “in the
_____________________
4
Id.
5
Wetherbe v. Tex. Tech Univ. Sys. (Wetherbe II), 699 F. App’x 297 (5th Cir. 2017)
(per curiam).
6
Id. at 298.
7
Id.
8
See id.
9
See Wetherbe, 2016 WL 1273471, at *2 n.3.
10
Guerra v. Castillo, 82 F.4th 278, 284 (5th Cir. 2023).
11
Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8
(5th Cir. 2002) (“Rule 12(b)(6) decisions appropriately guide the application of Rule 12(c)
because the standards for deciding motions under both rules are the same.”).
5
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No. 19-11325
light most favorable to the plaintiff, the complaint states a valid claim for
relief.” 12 Although we “accept the factual allegations in the pleadings as
true,” 13 the plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” 14 “[A] district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment.” 15
Here, the central issue on appeal is qualified immunity. The Supreme
Court established that “[q]ualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing (1) that
the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” 16 Courts
may address the two prongs in any order, 17 and defendants are entitled to
qualified immunity if the plaintiff fails on either prong. 18 For the reasons
considered below, we resolve this case on the second prong.
III
_____________________
12
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (quoting Hughes v. Tobacco
Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001)).
13
Id.
14
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
15
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
16
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
17
See id. (noting that “lower courts have discretion to decide which of the two
prongs of qualified-immunity analysis to tackle first”).
18
Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (“We can analyze the prongs
in either order or resolve the case on a single prong.”).
6
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No. 19-11325
We start by addressing the required level of specificity by which
Wetherbe’s rights must be clearly established.
A
“The doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.’” 19 “[Q]ualified immunity is inappropriate only
where the officer had ‘fair notice’—‘in light of the specific context of the
case, not as a broad general proposition’—that his particular conduct was
unlawful.” 20 “A clearly established right is one that is ‘sufficiently clear that
every reasonable official would have understood that what he is doing violates
that right.’” 21
Recitation of general legal principles is not sufficient to prove a
violation of a clearly established right. We require a more specific analysis.
The Supreme Court has “repeatedly told courts . . . not to define clearly
established law at a high level of generality.” 22 Instead, “the clearly
established law must be ‘particularized’ to the facts of the case.” 23 The
Supreme Court has explained that “[a]lthough ‘this Court’s case law does
not require a case directly on point for a right to be clearly established,
_____________________
19
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).
20
Morrow v. Meachum, 917 F.3d 870, 875 (5th Cir. 2019) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)).
21
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)).
22
Id. at 742.
23
White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
7
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No. 19-11325
existing precedent must have placed the statutory or constitutional question
beyond debate.’” 24 As a general proposition, “to show a violation of clearly
established law, [a plaintiff] must identify a case that put [the defendant] on
notice that his specific conduct was unlawful.” 25
A “general proposition,” such as “that an unreasonable search or
seizure violates the Fourth Amendment is of little help in determining
whether the violative nature of particular conduct is clearly established.” 26
Rather, “we must frame the constitutional question with specificity and
granularity.” 27 In other words, the “dispositive question is ‘whether the
violative nature of particular conduct is clearly established.’” 28 We also note
our “commandment” that clearly established law comes from “holdings, not
dicta,” because public officials “are charged with knowing the results of our
cases . . . [but] are not charged with memorizing every jot and tittle we write
to explain them.” 29
Respectfully, the district court erred by defining Wetherbe’s rights at
too high of a level of generality. The district court’s order denying Nail
qualified immunity held that “it was clearly established that a state official
could not impose adverse employment actions on a state employee on
account of that employee’s outside speech on a matter of public concern.”
The district court’s order recited a general legal proposition, instead of
_____________________
24
Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021) (per curiam) (quoting White,
580 U.S. at 79).
25
Id.
26
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
27
Morrow v. Meachum, 917 F.3d 870, 874-75 (5th Cir. 2019).
28
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quoting Ashcroft, 563 U.S.
at 742).
29
Morrow, 917 F.3d at 875-76.
8
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“fram[ing] the constitutional question with specificity and granularity.” 30
The district court’s failure to apply the correct level of generality resembles
the Eighth Circuit’s error described in Anderson v. Creighton. 31 In Anderson,
the Supreme Court rejected “[t]he [Eighth Circuit’s] brief discussion of
qualified immunity [which] consisted of little more than an assertion that a
general right Anderson was alleged to have violated—the right to be free from
warrantless searches of one’s home unless the searching officers have
probable cause and there are exigent circumstances—was clearly
established.” 32
Wetherbe contends that “[t]he law was clearly established that the
First Amendment protects speech directed to a person outside of the
workplace on a matter of public concern.” Wetherbe’s descriptions of
clearly established law are too reliant on “broad general proposition[s]” and
not sufficiently tied to “the specific context of the case.” 33
B
To determine the rights that must be clearly established, we briefly
discuss First Amendment retaliation doctrine, as well as some law of the case
considerations. Albeit circumscribed, government employees, including
professors, retain First Amendment protections. 34
_____________________
30
Id. at 874-75.
31
483 U.S. 635 (1987).
32
Id. at 640.
33
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223
(2009)).
34
See City of San Diego v. Roe, 543 U.S. 77, 80 (2004) (“A government employee
does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason
of his or her employment.”).
9
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The test for evaluating a First Amendment retaliation claim by
government employees has five elements. At the outset, there is a “threshold
layer” 35 to the inquiry: whether the employee spoke as a citizen or instead
made “statements pursuant to [his] official duties.” 36 If the employee’s
speech was made “pursuant to [his] official duties,” it is unprotected by the
First Amendment. 37 However, even if the employee spoke as a citizen, there
are additional elements he must prove. An employee must prove that “(1) he
suffered an adverse employment decision; (2) his speech involved a matter
of public concern; (3) his interest in speaking outweighed the governmental
defendant’s interest in promoting efficiency; and (4) the protected speech
motivated the defendant’s conduct.” 38
We consider three of the five parts of this test only briefly. Regarding
the “threshold layer,” Nail’s briefing does not argue that Wetherbe spoke as
an employee with respect to either prong of the qualified immunity test. We
will therefore assume for the purposes of this appeal that Wetherbe was not
speaking in that capacity. 39 With regard to element three, which balances the
employee’s and employer’s interests, Nail’s 12(c) motion did not address
whether this element was met for purposes of the “constitutional violation”
prong of qualified immunity, and his initial brief in our court does not raise
the issue as to the “clearly established” prong. Nail’s reply briefly mentions
this element, but we will not consider issues raised for the first time in a reply
_____________________
35
Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007) (per curiam).
36
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
37
Id.
38
Hurst v. Lee County, 764 F.3d 480, 484 (5th Cir. 2014).
39
See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) (per curiam)
(“Failure of an appellant to properly argue or present issues in an appellate brief renders
those issues abandoned.”).
10
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No. 19-11325
brief. Nail’s briefing does address element four, which concerns causation
and retaliatory animus. However, “the ‘clearly established’ qualified
immunity standard . . . . does not require that causation be clearly
established,” 40 so we need not address element four.
That leaves two remaining elements with respect to the “clearly
established” prong of qualified immunity: “(1) [the plaintiff] suffered an
adverse employment decision” and “(2) [the plaintiff’s] speech involved a
matter of public concern.” 41 Therefore, applying the structure of analysis we
employed in Click v. Copeland, 42 Nail is entitled to qualified immunity unless
it was (1) clearly established that Nail’s alleged retaliatory acts were adverse
employment actions and (2) clearly established that Wetherbe’s speech
regarding tenure was on a matter of public concern. Because we conclude
that it was not clearly established that Wetherbe’s speech regarding tenure
addressed a matter of public concern, we do not reach whether it was clearly
established that Nail’s alleged actions were adverse employment actions.
C
The relevant alleged retaliatory acts occurred from August 2013 to
March 2015. Prior to (and during) this timeframe, no clearly established law
would have put every reasonable person on notice that Wetherbe’s speech
regarding tenure involved a matter of public concern.
_____________________
40
Johnson v. Halstead, 916 F.3d 410, 421 n.4 (5th Cir. 2019).
41
Hurst, 764 F.3d at 484.
42
Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992) (“We divide the analysis into
two parts: whether it was clearly established (1) that transfers, as distinguished from
discharges, were actionable, and (2) that political activity, as distinguished from political
belief, was protected.”).
11
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No. 19-11325
“Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a given statement,
as revealed by the whole record.” 43 This requires a fact-specific analysis and
weighing of the factors. 44 As we have explained, “[o]ne consequence of case-
by-case balancing is its implication for the qualified immunity of public
officials whose actions are alleged to have violated an employee’s [F]irst
[A]mendment rights,” so “[t]here will rarely be a basis for a priori judgment
that the termination or discipline of a public employee violated ‘clearly
established’ constitutional rights.” 45
This court’s opinion in Wetherbe II said that Wetherbe “plausibly
alleged that his speech in the form of articles published on tenure constituted
speech on a matter of public concern.” 46 That may be law of the case, but it
is not binding precedent as to whether articles by a nontenured employee of
a university about problems with tenure is speech on a matter of public
concern. Of course, the most salient point for purposes of resolving
Wetherbe’s present suit is that our 2017 decision in Wetherbe II cannot clearly
establish the law from August 2013 to March 2015 because it postdates Nail’s
_____________________
43
Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 186 (5th Cir. 2005) (emphasis
omitted) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).
44
See id. at 189 (“We held in Terrell [v. University of Texas System Police, 792 F.2d
1360 (5th Cir. 1986)] that the plaintiff’s speech was not protected because, although it
concerned police corruption, a matter of inherent public interest, the speech was made only
in a private diary which the plaintiff never intended to make public . . . . Our Terrell holding,
however, is more accurately characterized as one in which we completely discounted the
content of an employee’s speech because the context element weighed so heavily against a
holding of protected speech.” (footnote omitted) (citing Terrell, 792 F.2d at 1362-63)).
45
Noyola v. Tex. Dep’t of Hum. Res., 846 F.2d 1021, 1025 (5th Cir. 1988) (discussing
the impact on the qualified immunity analysis of balancing an employee’s First
Amendment interests against government interests in efficiency and discipline).
46
Wetherbe II, 699 F. App’x 297, 301 (5th Cir. 2017) (per curiam).
12
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No. 19-11325
alleged retaliation. 47 Moreover, Wetherbe II is unpublished. 48 Nor does
Wetherbe II’s analysis support Wetherbe’s position that it was clearly
established from August 2013 to March 2015 that Wetherbe’s speech on
tenure regarded a matter of public concern.
For purposes of brevity, we will not summarize all of our First
Amendment retaliation cases. But it suffices to say that none of our (or the
Supreme Court’s) precedents place the “constitutional question beyond
debate.” 49 As with the cases Wetherbe II cites, some provide rules and
analyses that one could reasonably apply to suggest that Wetherbe’s speech
was on a matter of public concern. But “clearly established law comes from
holdings,” 50 and none of our cases have held that speech regarding tenure is
on a matter of public concern, or anything approaching that. 51
Finally, the Supreme Court’s decision in Hope v. Pelzer 52 does not
allow Wetherbe to sidestep the general rule that law is clearly established
when there is “controlling authority specifically prohibiting a defendant’s
_____________________
47
See Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir. 2013) (“The applicable law
that binds the conduct of officeholders must be clearly established at the time the allegedly
actionable conduct occurs.”).
48
Garcia v. Blevins, 957 F.3d 596, 601 (5th Cir. 2020) (“Reyes [v. Bridgwater, 362
F. App’x 403 (5th Cir. 2010)] is unpublished, however, and so cannot clearly establish the
law.”).
49
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
50
Morrow v. Meachum, 917 F.3d 870, 875 (5th Cir. 2019).
51
See, e.g., Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 191 n.47 (5th Cir. 2005)
(collecting cases); Kennedy v. Tangipahoa Par. Libr. Bd. of Control, 224 F.3d 359, 373 (5th
Cir. 2000) (collecting cases), abrogated in part on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); Charles v. Grief, 522 F.3d 508, 514 n.23 (5th Cir. 2008) (collecting
cases).
52
536 U.S. 730 (2002).
13
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conduct.” 53 In Hope, the Court stated that “officials can still be on notice
that their conduct violates established law even in novel factual
circumstances.” 54 In that case, the Court denied qualified immunity at the
summary judgment stage to Alabama prison guards who handcuffed a
prisoner to an outdoor hitching post for hours at a time, leading to burns on
at least one occasion. 55 The Court noted that “[t]he obvious cruelty inherent
in this practice should have provided respondents with some notice that their
alleged conduct violated Hope’s constitutional protection against cruel and
unusual punishment.” 56 The case before us is not of this ilk.
Cases decided after Hope confirm this. For example, in Brosseau v.
Haugen, 57 a case in which a law enforcement officer shot a fleeing suspect,
the Supreme Court reiterated that “in an obvious case,” statements of law
“can ‘clearly establish’” constitutional rights, “even without a body of
relevant case law.” 58 Nevertheless, the Supreme Court reversed the court of
appeals because it had erroneously “proceeded to find fair warning in the
general tests set out in Graham and Garner.” 59 Both Graham 60 and Garner 61
involved excessive-force claims, but the Supreme Court held that these and
_____________________
53
Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013).
54
Hope, 536 U.S. at 741.
55
Id. at 733-35, 746.
56
Id. at 745.
57
543 U.S. 194 (2004) (per curiam).
58
Id. at 199 (citing Hope, 536 U.S. at 738).
59
Id.
60
Graham v. Connor, 490 U.S. 386 (1989).
61
Tennessee v. Garner, 471 U.S. 1 (1985).
14
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other excessive-force cases “by no means ‘clearly establish’ that [the
officer’s] conduct violated the Fourth Amendment.” 62
Similarly, although there was case law regarding what constitutes a
matter of public concern at the time the events giving rise to this case
occurred, at most, that precedent provided general principles. There was no
fair warning when the conduct at issue in the present appeal occurred that
Nail would be violating Wetherbe’s constitutional right to free speech.
Neither Wetherbe nor the dissenting opinion cites a decision that intimates
that diverging views among members of the academy about tenure rose to the
level of a matter of public concern. Nor was it obvious that Wetherbe’s
speech regarding tenure was on a matter of public concern.
In light of our (and the Supreme Court’s) precedents, we cannot say
that Nail had “fair notice” from August 2013 to March 2015 that Wetherbe’s
speech regarding tenure was on a matter of public concern. Consequently,
Nail is entitled to qualified immunity.
IV
The parties ask us to determine if Wetherbe’s claims for declaratory
and injunctive relief against Williams may proceed. However, nothing
indicates that the district court ruled on Wetherbe’s claims for declaratory
and injunctive relief. The district court’s order denying the Rule 12(c)
motion focused entirely on Nail’s qualified immunity defense. The decretal
language in the order is telling: “Consequently, Nail’s Motion for Judgment
on the Pleadings . . . is DENIED.” There was no mention of Williams or
_____________________
62
Brosseau, 543 U.S. at 201.
15
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the claims for declaratory and injunctive relief. Those issues are not before
us. 63
* * *
For the foregoing reasons, we REVERSE the district court’s order
denying qualified immunity to defendant Nail and RENDER judgment
granting him qualified immunity from plaintiff Wetherbe’s First Amendment
retaliation claims.
_____________________
63
See Masat v. United States, 745 F.2d 985, 988 (5th Cir. 1984) (“This court is
solely a court of appeals, and its powers are limited to reviewing issues raised in, and
decided by, the trial court.”).
16
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No. 19-11325
James L. Dennis, Circuit Judge, dissenting:
Dr. James Wetherbe is a professor at Texas Tech University’s Rawls
School of Business. For over twenty years, Wetherbe has distinguished
himself as an outspoken critic of academic tenure, even going so far as
rejecting tenure “to set an example.” In this lawsuit, Wetherbe alleges that
he suffered retaliation—a de facto demotion—in violation of the First
Amendment for a series of articles he published that criticized academic
tenure. Wetherbe sued the business school’s former dean, Dr. Lance Nail,
under 42 U.S.C. § 1983. The district court found that Wetherbe’s allegations
were sufficient to overcome Nail’s qualified immunity defense and denied
Nail’s motion for judgment on the pleadings.
The majority opinion disagrees, reversing the district court’s denial of
qualified immunity and rendering judgment in favor of Nail. In doing so, it
truncates the analysis, only addressing the clearly established prong of
qualified immunity, and errantly finds that “no clearly established law would
have put every reasonable person on notice that Wetherbe’s speech
regarding tenure involved a matter of public concern.” Ante, at 11. Because I
would find that Wetherbe sufficiently alleged a violation of his constitutional
rights that was clearly established at the time of the incident, as evidenced by
binding precedents cited to in a previous appeal in this same case, Wetherbe
v. Texas Tech University System, 699 Fed. App’x 297 (5th Cir. 2017) (first
citing Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 190 (5th Cir. 2005); and
then citing Moore v. Kilgore, 877 F.2d 364, 370–72 (5th Cir. 1989)), I
respectfully dissent.
* * *
Whether an official is entitled to qualified immunity involves two
inquiries: “The first question is whether the officer violated a constitutional
right. The second question is whether the ‘right at issue was clearly
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established at the time of [the] alleged misconduct.’” Morrow v. Meachum,
917 F.3d 870, 874 (5th Cir. 2019) (citing Pearson v. Callahan, 555 U.S. 223,
232 (2009)).
As the majority opinion ably explains, Wetherbe alleges Nail violated
his First Amendment rights by retaliating against his protected speech. To
establish retaliation under the First Amendment, Wetherbe must show “(1)
he suffered an adverse employment decision; (2) his speech involved a matter
of public concern; (3) his interest in speaking outweighed the government
defendant’s interest in promoting efficiency; and (4) the protected speech
motivated the defendant’s conduct.” Hurst v. Lee Cty., 764 F.3d 480, 484
(5th Cir. 2014) (quoting Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011)). 1
The majority opinion finds, and I agree, that Nail waived any argument on
the third element, and that the fourth need not be clearly established. Ante,
at 10–11. Employing the framework from Click v. Copeland, 970 F.2d 106, 109
(5th Cir. 1992), the majority opinion correctly explains that “Nail is entitled
to qualified immunity unless it was (1) clearly established that Nail’s alleged
retaliatory acts were adverse employment actions and (2) clearly established
that Wetherbe’s speech regarding tenure was on a matter of public concern.”
Ante, at 11.
The majority opinion and I diverge on the application of Click’s rubric.
First, the majority opinion doesn’t address whether Wetherbe
suffered an adverse employment action—but of course he did, as Texas Tech
_____________________
1
There is an additional threshold inquiry to determine whether speech is protected
by the First Amendment: whether the employee spoke as a citizen (protected) or instead
made “statements pursuant to [his] official duties” (unprotected). Williams v. Dall. Indep.
Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421
(2006)). The majority opinion correctly notes that Nail’s briefing does not argue that
Wetherbe spoke as an employee and thus assumes for the purpose of this appeal that
Wetherbe was speaking as a citizen. Ante, at 10.
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effectively demoted him. Benningfield v. City of Hous., 157 F.3d 369, 376 (5th
Cir. 1998) (“Adverse employment actions are . . . demotions . . . .” (quoting
Pierce v. Tex. Dep’t of Crim. Justice, Inst. Div., 37 F.3d 1146, 1149 (5th Cir.
1994))).
Wetherbe alleges he was transferred from teaching an MBA course to
an introductory course, which amounts to a demotion. Specifically, he alleges
that the change resulted in “a twenty percent reduction in annual
compensation,” and his job being “markedly less prestigious and
interesting” than it was before the change. Breaux v. City of Garland, 205
F.3d 150, 157 (5th Cir. 2000) (explaining that a transfer can constitute an
adverse employment action where the new job is “markedly less prestigious
and less interesting than the old one”). Beyond this, Wetherbe also alleges
that his change from full professor to professor of practice caused a fifty
percent increase in his workload, significantly reducing his time for research
and publications. And he alleges that the ability to research and publish are
the mark of prestige. Taking these allegations as true, these actions made
Wetherbe’s job markedly less interesting, prestigious, and substantially
diminished his pay. Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir. 1999)
(“To be equivalent to a demotion, a transfer need not result in a decrease in
pay, title, or grade; it can be a demotion if the new position proves objectively
worse—such as being less prestigious or less interesting or providing less
room for advancement.”). This is clearly sufficient to constitute an adverse
employment action under this court’s precedents, and I would hold that
Wetherbe successfully established that he suffered several adverse
employment actions. Id.; Breaux, 205 F.3d at 157.
Second, on the issue that the majority opinion does reach, it concludes
there was “no clearly established law [that] would have put every reasonable
person on notice that Wetherbe’s speech regarding tenure involved a matter
of public concern.” Ante, at 11. Not so.
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Nail correctly acknowledges that we concluded in our previous
appeal, Wetherbe, 699 F. App’x 297, that “Wetherbe’s anti-tenure speech
involved a matter of public concern.” In that previous appeal, we held that
“articles published on tenure constituted speech on a matter of public
concern” because they “focus on the systemic impact of tenure, not
Wetherbe’s own job conditions.” 699 F. App’x at 301, 300. The majority
opinion skirts this conclusion by holding that Wetherbe, an unpublished case
issued in 2017, cannot serve to clearly establish the law from August 2013 to
March 2015. Ante, at 12–13. While the majority opinion is correct that “[t]he
applicable law that binds the conduct of officeholders must be clearly
established at the time the allegedly actionable conduct occurs,” Wetherbe
points to various published cases that, when taken together, clearly
established the law prior to August 2013. Wyatt v. Fletcher, 718 F.3d 496, 502–
03 (5th Cir. 2013). Specifically, Wetherbe explained that because the articles
do not discuss Wetherbe’s own job conditions and only discuss the
systematic impact of tenure, they are a matter of public concern. 699 F.
App’x at 300 (first citing Salge, 411 F.3d at 190 (finding that the content of
an employee’s speech weighed “in favor of holding that she spoke on a
matter of public concern” when she spoke about a matter unrelated to her
own employment status or job performance); and then citing Moore, 877 F.2d
at 370–72 (firefighter’s thoughts about staffing shortage constituted speech
on a matter of public concern)); see also Charles v. Grief, 522 F.3d 508 (5th
Cir. 2008) (explaining that where the speech “was not made in the course of
performing or fulfilling his job responsibilities, was not even indirectly related
to his job, and was not made to higher-ups in his organization . . . but was
communicated directly to elected representatives of the people,” it
constituted speech on a matter of public concern).
The majority opinion simply concludes that “none of our cases have
held that speech regarding tenure is on a matter of public concern.” Ante, at
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13. Our analysis is not so narrow, however. See Warnock v. Pecos Cnty., Tex.,
116 F.3d 776, 782 (5th Cir. 1997) (holding that, though the contours of a right
must be adequately defined, “‘[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.’” (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987))). “The law can be clearly established ‘despite notable
factual distinctions between the precedents relied on and the cases then
before the Court, so long as the prior decisions gave reasonable warning that
the conduct then at issue violated constitutional rights.’” Trammell v. Fruge,
868 F.3d 332, 339 (5th Cir. 2017) (quoting Ramirez v. Martinez, 716 F.3d 369,
379 (5th Cir. 2013)); see also Cutler v. Stephen F. Austin State Univ., 767 F.3d
462 (5th Cir. 2014) (finding that several cases, when considered together,
were sufficient to provide clear warning that termination on the basis of the
plaintiff’s speech violated the First Amendment).
Salge, decided in 2005, held that a high school secretary’s telephone
conversation with a reporter regarding the “high-profile” resignation of the
school principal constituted speech on a matter of public concern and
established the rule that employee speech unrelated to the employee’s own
employment status or job performance weighs in favor of holding that the
employee spoke on a matter of public concern. 411 F.3d at 192. In Moore,
decided in 1989, we held that speech regarding fire department layoffs and
possible staffing shortages was on a matter of public concern following the
death of a firefighter and a “caldron” of media coverage that “was still
simmering” regarding the layoffs, explaining that “[t]he First Amendment
accords all of us, as participants in a democratic process, room to speak about
public issues.” 877 F.2d at 371. In another case cited by Wetherbe, we held
that a library employee spoke on a matter of public concern when she wrote
a letter to library management suggesting new library safety and security
policies after a library employee was raped—“a violent crime that had shaken
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the local community and generated significant press coverage.” Kennedy v.
Tangipahoa Par. Libr. Bd. of Control, 224 F.3d 359, 373 (5th Cir. 2000),
abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563
(2007). Kennedy explained “speech made against the backdrop of ongoing
commentary and debate in the press involves the public concern.” Id.
Wetherbe’s publicized speech regarding tenure was unrelated to his
responsibilities and on a matter the public has an interest in, as evidenced by
the variety of articles and publications cited in Wetherbe’s amended
complaint. Wetherbe, 699 Fed. App’x at 301 (“the fact that various media
outlets published Wetherbe’s articles, shows that Wetherbe’s speech was
made against the backdrop of an ongoing public conversation about tenure,
which indicates that the public is actually concerned about tenure.”) (citing
Kennedy, 224 F.3d at 373 (“[S]peech made against the backdrop of ongoing
commentary and debate in the press involves the public concern.”)).
If expressing an opinion about an elected official (Cutler, 767 F.3d
462), emailing elected officials about retaliation on the Texas Lottery
Commission, (Charles, 522 F.3d 508), and discussing the resignation of a
principal with a reporter (Salge, 411 F.3d at 192), are all speech on matters of
public concern, then a reasonable official should have known that publishing
articles criticizing tenure was speech on a matter of public concern too. For
over forty years, “government employers have known that, unless their
interest in efficiency at the office outweighs the employee’s interest in
speaking, they cannot fire their employees for making statements that relate
to the public concern.” Kennedy, 224 F.3d at 377. Accordingly, I would hold
that based on these precedents Nail had clear warning that demoting
Wetherbe on the basis of his publications about the institution of tenure in
general, which were unrelated to his employment or job duties, would violate
Wetherbe’s First Amendment rights. Ante, at 10 (the majority itself assuming
Wetherbe was not speaking as an employee for the purposes of this appeal);
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see also Cutler, 767 F.3d at 473 (affirming the denial of summary judgment on
qualified immunity grounds where “reasonable officials . . . should have
known on the basis of Charles and Davis that [the plaintiff’s] speech was
protected as the speech of a citizen and that their decision to terminate [the
plaintiff] on the basis of that citizen speech would violate” the First
Amendment).
Because I would affirm the district court’s denial of qualified
immunity and remand for further proceedings, I respectfully dissent.
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