Schultea v. Wood

United States Court of Appeals,

Fifth Circuit.

No. 93-2186.

Joseph M. SCHULTEA, Sr., Plaintiff-Appellee,

v.

David Robert WOOD, et al., Defendants,

David Robert Wood, Homer Ford, W.F. "Slim" Plagens, and Warren K.

Driver, Defendants-Appellants.

Aug. 9, 1994.

Appeal from the United States District Court for the Southern

District of Texas.

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff Joseph M. Schultea, Sr. brought this 42 U.S.C. §

1983 lawsuit against Defendants David R. Wood, Homer Ford, and W.F.

Plagens—three councilmen of the City of Tomball—and Warren K.

Driver—the city manager—("the Defendants"), alleging that they

unlawfully deprived him of his substantive due process rights when

transferring him from his position as the City's chief of police to

the position of assistant chief. The Defendants moved to dismiss

the complaint on qualified immunity grounds. The Defendants now

appeal the district court's decision denying their motion. We

affirm in part, reverse in part, and remand.

I

Schultea currently is the assistant chief of police in

Tomball. In March 1992, Schultea, then the City's chief of police,

began investigating allegations that councilman Wood had engaged in

1

criminal activity. On April 9, 1992, Schultea discussed his

investigation with city manager Driver and Mario Del Osso, the city

attorney. Schultea, Driver, and Del Osso decided that Schultea

should forward all information regarding Wood to the Texas

Department of Public Safety ("TDPS"). Schultea alleges that Wood

learned of his investigation soon after the April 9 meeting because

Driver, on April 10, advised Schultea that Wood demanded that

Driver "put Schultea on the City Council's April 20, 1992 agenda

for adverse action." Driver, according to Schultea, managed to

dissuade Wood from pursuing any "threatened retaliation" against

Schultea.

On May 27, Schultea, after advising Driver, forwarded to the

TDPS additional information about Wood. Later that same day,

Schultea learned that Wood, Ford, and Plagens instructed Driver to

place Schultea on the June 1 city council agenda, "at which time

[the] council would discuss terminating or demoting Schultea."

Schultea subsequently requested that the city council declare the

portion of the June 1 council meeting pertaining to him to be an

"open and public meeting" at which he could address the council and

the citizens of Tomball, but the council denied his request.

Schultea further contends that, during the same time period, the

Defendants made defamatory statements about him "concerning an

alleged violation of the City's purchasing ordinance and

competitive bid process." In response, Schultea requested a

"name-clearing" hearing, which, according to the complaint, the

city council denied. On June 2, Driver formally informed Schultea

2

that he had been demoted from police chief to assistant chief.

Schultea subsequently filed this lawsuit in federal district

court, alleging that the Defendants terminated him in retaliation

for reporting Wood's allegedly criminal activities to the TDPS, in

violation of the First Amendment, and that the reassignment

occurred without due process, in violation of both his property and

liberty interests.1 The Defendants filed a motion to dismiss

Schultea's constitutional claims under Fed.R.Civ.P. 12(b)(6). The

district court denied the Defendants' motion, holding only that

"the complaint ... states a claim against the defendants."

II

We review de novo the district court's decision to deny a

motion to dismiss on immunity grounds. Cinel v. Connick, 15 F.3d

1338, 1341 (5th Cir.1994). "We must accept all well-pleaded facts

as true, and we view them in the light most favorable to the

plaintiff." Id. "The complaint is not subject to dismissal unless

it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief."

Chrissy F. v. Mississippi Dept. of Pub. Welfare, 925 F.2d 844, 846

(5th Cir.1991) (internal quotation omitted).

As public officials, the Defendants "are entitled to

qualified immunity from suit under section 1983 unless it is shown

1

Schultea also asserted several supplemental state-law

causes of action, including a claim under the Texas Whistle

Blower Act, Tex.Gov't Code Ann. § 554.002 (West 1994), a claim

under the Texas Open Meetings Law, Tex.Gov't Code Ann. § 551.001

et seq., a claim for the intentional infliction of emotional

distress, and a claim for defamation.

3

by specific allegations that [they] violated clearly established

constitutional law."2 Salas v. Carpenter, 980 F.2d 299, 305 (5th

Cir.1992). The qualified immunity determination requires a

two-step analysis. In reviewing a denial of qualified immunity, we

first must determine whether the plaintiff has stated a violation

of a clearly established constitutional right. Id. "A necessary

concomitant to the determination of whether the constitutional

right asserted by the plaintiff is "clearly established' at the

time the defendant acted is the determination of whether the

plaintiff has asserted a violation of a constitutional right at

all." Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793,

2

"[W]hen government officials are likely to invoke qualified

immunity, we demand that a complaint state factual detail and

particularity including why the defendant-official cannot

maintain the immunity defense." Colle v. Brazos County, 981 F.2d

237, 246 (5th Cir.1993). Citing the Supreme Court's recent

decision in Leatherman v. Tarrant County Narcotics Unit, --- U.S.

----, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), Schultea contends

that this Circuit's "heightened pleading" standard "does not

square with the liberal system of notice pleading set forth in

... the Federal Rules of Civil Procedure." However, the Supreme

Court in Leatherman did not "consider whether [its] qualified

immunity jurisprudence would require a heightened pleading in

cases involving individual government officials." Because we

previously have held that plaintiffs must meet such a hurdle, see

Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985), we reject

Schultea's contention that he need not. See In re Dyke, 943 F.2d

1435, 1442 (5th Cir.1991) ("In this circuit, one panel may not

overrule the decision—right or wrong—of a prior panel, absent en

banc reconsideration or a superseding decision of the Supreme

Court."); see also Branch v. Tunnell, 14 F.3d 449, 456-57 (9th

Cir.) (panel bound by prior panel's adoption of the heightened

pleading standard because Leatherman did not undermine that

precedent), cert. denied, --- U.S. ----, 114 S.Ct. 2704, ---

L.Ed.2d ---- (1994); Kimberlin v. Quinlan, 6 F.3d 789, 794 n. 9

(D.C.Cir.1993) (holding that because Leatherman "did not address

heightened pleading in individual capacity suits, our precedent

requiring that standard in such suits remains the governing law

of this circuit"), petition for cert. filed, --- U.S.L.W. ----

(U.S. June 22, 1994) (No. 93-2068).

4

114 L.Ed.2d 277 (1992); see also Hopkins v. Stice, 916 F.2d 1029,

1030-31 (5th Cir.1990) (A public official "enjoys qualified

immunity if a reasonable official would be left uncertain of the

application of the standard to the facts confronting him."). If

the plaintiff crosses this threshold, "we next examine the

objective reasonableness of the defendant official[s'] conduct."

Salas, 980 F.2d at 305-06.

III

To succeed with a claim based on substantive due process in

the public employment context, the plaintiff must demonstrate that

he had a clearly-established property interest in his employment.

Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir.1993). A

property interest in employment may be created by an implied

contract. Id. Because Texas is an employment-at-will state,3

employment contracts are terminable at will by either party absent

a specific contract to the contrary. Id. Thus, to prevail,

Schultea must demonstrate that such a contract existed. Id.

Schultea contends that the City Charter established that he

could be removed from his position as chief of police only "for

cause."4 The Charter provides in pertinent part that:

3

"Property interests are created and their dimensions are

defined by existing rules or understandings under state law."

Williams v. Texas Tech Univ. Health Sciences Ctr., 6 F.3d 290,

293 (5th Cir.1993).

4

"Under Texas law, home rule cities, such as [Tomball],

generally may create their own offices and establish policies for

determining the "manner and mode of selecting officers and

prescribing their qualifications, duties, compensation, and

tenure of office' in their charters." Henderson v. Sotelo, 761

F.2d 1093, 1096 (5th Cir.1985) (quoting Tex.Rev.Civ.Stat.Ann.

5

The Chief of Police is the senior officer of the Police

Department. He is appointed by the City Manager, with the

approval of the Council, for an indefinite term.... He is

responsible to the City Manager for the administration of the

Police Department and the performance of Council-established

duties and directives. He may be removed from office by the

City Manager, with the approval of the Council.

In Moulton, 991 F.2d at 230-31, and Henderson v. Sotelo, 761 F.2d

1093, 1096-97 (5th Cir.1985), we reviewed similar charter

provisions and held that absent "termination for cause" language,

this type of charter provision creates no property interest.

Consequently, Schultea had no entitlement to continued employment

absent cause for dismissal under the Charter and, thus, had no

property interest in his status as police chief.

Schultea nevertheless argues that representations made by the

city manager who hired him—Don Taylor—constituted an oral agreement

that the City would not remove him from his position as police

chief except "for cause." Schultea asserts that Taylor "was the

appropriate policy maker who had the authority to modify" the

Charter provision relating to the chief of police position.

Schultea's argument appears to be that because Taylor was expressly

authorized to modify the Charter provision, the modification is

valid and binds the City. See Moore v. Office of Atty. General,

820 S.W.2d 874, 878 (Tex.App.—Austin 1991) (noting that "the rule

that an agent can bind his principal by acts within his apparent

authority has been held not to apply to public officials").

art. 1175 § 1 (Vernon 1963)). "Thus, such cities may determine

by charter whether employment in certain city offices is at will

or continuous absent just cause for dismissal, and Texas courts

will give effect to such charter provisions." Id.

6

However, Schultea has failed to allege that the City Council ever

acted to confer any express authority to act as its agent regarding

any changes to the at-will provision of the Charter.5 See Hopkins,

916 F.2d at 1031; Thermo Prods. Co. v. Chilton Indep. Sch. Dist.,

647 S.W.2d 726, 732-33 (Tex.App.—Waco 1983, writ ref'd n.r.e.).

Moreover, Schultea has not alleged that the Council was ever

informed of Taylor's alleged oral agreement with Schultea.

Finally, Schultea's transfer to the position of assistant chief did

not involve a decrease in salary or fringe benefits,6 and Schultea

does not allege that he was constructively discharged—i.e., that

his loss of responsibilities as police chief was so intolerable

that a reasonable person would have felt compelled to resign. See

Jett, 798 F.2d at 754-55. Because a reasonable official could have

5

Compare United Transp. Union v. Brown, 694 S.W.2d 630, 632-

33 (Tex.App.—Texarkana 1985, writ ref'd n.r.e.) (upholding the

validity of an oral contractual limitation upon the union's

ability to terminate an employee where the parties stipulated

that the union representative agreeing to the limitation "had

authority to bind the union").

6

We previously have stated:

When a public employee has a legitimate entitlement to

his employment, the due process clause may protect as

"property" no more than the status of being an employee

of the governmental employer in question together with

the economic fruits that accompany the position.

Although the governmental employer may specifically

create a property interest in a noneconomic

benefit—such as a particular work assignment—a property

interest in employment generally does not create due

process property protection for such benefits.

Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 754 n. 3

(5th Cir.1986) (citing cases), aff'd in relevant part and

remanded in part, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d

598 (1989).

7

concluded on these facts that Schultea could be reassigned to

assistant chief "without treading on ground clearly protected by

the Constitution," Williams, 6 F.3d at 294, the district court

should have granted the Defendants' motion to dismiss as to the

property interest claim.

IV

Schultea next alleges that the Defendants denied him a

liberty interest qualifying for due process protection because the

reassignment from police chief to assistant chief, combined with

the false accusations that Schultea violated the City's purchasing

ordinance, constitutes a loss of employment. Schultea additionally

alleges that the Defendants unconstitutionally denied him an

opportunity to clear his name. See Rosenstein v. City of Dallas,

876 F.2d 392, 395 (5th Cir.1989) ("It is now beyond any doubt that

discharge from public employment under circumstances that put the

employee's reputation, honor or integrity at stake gives rise to a

liberty interest under the Fourteenth Amendment to a procedural

opportunity to clear one's name."), aff'd, 901 F.2d 61 (5th Cir.)

(en banc), cert. denied, 498 U.S. 855, 111 S.Ct. 153, 112 L.Ed.2d

119 (1990).

As we stated in Moore v. Otero, 557 F.2d 435, 437-38 (5th

Cir.1977) (footnote omitted),

To establish a liberty interest sufficient to implicate

fourteenth amendment safeguards, the individual must not only

be stigmatized but also stigmatized in connection with a

denial of a right or status previously recognized under state

law....

... When an employee retains his position even after

being defamed by a public official, the only claim of stigma

8

he has derives from the injury to his reputation, an interest

that [Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d

405 (1976),] reveals does not rise to the level of a liberty

interest. The internal transfer of an employee, unless it

constitutes such a change of status as to be regarded as

essentially a loss of employment, does not provide the

additional loss of a tangible interest necessary to give rise

to a liberty interest meriting protection under the due

process clause of the fourteenth amendment.

In Nix v. City of Galean Park, No. 93-2512 (5th Cir. Jan. 31,

1994), we applied the teachings of Moore to a situation in which

the plaintiff was demoted from assistant police chief to captain

after the chief of police publicly alleged that Nix violated a

police department rule, a violation that could have resulted in

criminal theft charges. "Utilizing the "stigma-plus' test outlined

in Paul v. Davis," we held that the police chief's "public

allegations regarding Nix's on-duty use of a public vehicle [in a

prohibited manner], together with Nix's reassignment from Assistant

Chief of Police to captain, did not deprive Nix of a liberty

interest protected by the due process clause of the fourteenth

amendment." Nix, slip op. at 7-8. "Nix's retention of employment

following the alleged "deprivation' negate[d] his claim that he was

denied a liberty interest." Id. at 8. "The only claim of stigma

Nix possesse[d] derives from the injury to his reputation, an

interest that does not rise to the level of a liberty interest."

Id.

Like Nix, Schultea received "the same or substantially similar

salary and fringe benefits" after reassignment. Id. Similarly,

Schultea's retention of employment negates his claim that he was

9

denied a liberty interest.7 Thus, we find that Schultea has failed

to allege that he was deprived of a liberty interest protected by

the Due Process Clause of the Fourteenth Amendment. Consequently,

the district court should have granted the Defendants' motion to

dismiss as to this claim.8

V

Schultea has failed to allege a cognizable claim that the

Defendants violated either a property or liberty interest

recognized by the Constitution. Anticipating this holding,

Schultea has requested that we remand the case to allow another

pleading that might cure the defects. "Dismissing an action after

giving the plaintiff only one opportunity to state his case is

ordinarily unjustified." Jacquez v. Procunier, 801 F.2d 789, 792

(5th Cir.1986); see also Brown v. Texas A & M Univ., 804 F.2d 327,

334 (5th Cir.1986) ("the liberal pleading and amendment standards

established by the Federal Rules of Civil Procedure mandate that we

remand to allow [the plaintiff] to have another opportunity to

plead a cognizable case, if such a case can be made."). However,

plaintiffs cannot be allowed to continue to amend or

supplement their pleadings until they stumble upon a formula

7

Schultea asserts the conclusory allegation that his

reassignment was "such a change in status as to be essentially

regarded as a loss of employment." Schultea, however, has not

alleged that the transfer deprived him of any significant or

substantial duties. See Moore, 557 F.2d at 438 n. 11 ("If Moore

had been transferred from corporal's duties to janitorial duties,

his loss of status might present the type of loss of tangible

interest connected with stigmatizing state action that, under

Paul, could give rise to a liberty interest.") (emphasis added).

8

Because of our holding, we need not decide whether Schultea

was denied a meaningful hearing to clear his name.

10

that carries them over the threshold.... At some point a

court must decide that a plaintiff had a full and fair

opportunity to make his case; if, after that time, a cause of

action has not been established, the court should finally

dismiss the suit.

Jacquez, 801 F.2d at 792. Therefore, where the pleadings do not

state a cognizable claim but, "when viewed under the individual

circumstances of the case, demonstrate that the plaintiff has

pleaded his best case," there is no need to remand for further

pleadings. Id. at 793; see also Morrison v. City of Baton Rouge,

761 F.2d 242, 246 (5th Cir.1985) (upholding the dismissal of a §

1983 action where "the specific allegations of the amended

complaint constitute the plaintiffs' best case for demonstrating

that [the defendant] acted outside the scope of ... immunity").

In this case, there is no intimation that Schultea's complaint

constitutes his best case.9 Accordingly, we remand the case to the

district court so that Schultea may amend his complaint, if

possible, to plead sufficient facts supporting a claim under the

Fourteenth Amendment.10 See Brown, 804 F.2d at 336-37.

VI

The Defendants also contest the district court's denial of

their motion to dismiss Schultea's First Amendment claim. Schultea

contends that the Defendants reassigned him from police chief to

9

Schultea filed his pro se complaint on July 2, 1992.

Schultea later retained counsel, who filed their notice of

appearance on July 29. The Defendants filed their motion to

dismiss the next day. Schultea filed his response on August 10,

and the district court denied the motion in February 1993.

10

We, of course, neither express nor intimate any view as to

whether, if Schultea should amend his pleadings, he can prove the

resultant claims made.

11

assistant chief in retaliation for his reporting possible criminal

acts by Wood to the TDPS. We review de novo the legal question

whether Schultea's allegations state a valid claim of retaliation.

Caine v. Hardy, 943 F.2d 1406, 1415 (5th Cir.1991) (en banc), cert.

denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992).

A

To assert a retaliation claim cognizable under the First

Amendment, a plaintiff must allege facts demonstrating that his

speech involved a matter of public concern.11 Connick v. Myers, 461

U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). To

rise to the level of public concern, the speech at issue must have

been made primarily as a citizen rather than as an employee

11

If the public concern hurdle is cleared, a second

threshold requirement involves balancing the interests of the

employee, as a citizen, in commenting upon matter of public

concern against the interest of the employer in promoting the

efficiency of the public services it performs through its

employees. Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d

1172, 1177 n. 6 (5th Cir.1992). "If the balance is struck in

favor of the employee, the case is submitted to the jury on

causation"—whether the plaintiff's speech was a "substantial" or

"motivating" factor in the defendant's decision. Id.

The Defendants, however, do not contend that Schultea's

letters should not be considered "speech" within the meaning

of the First Amendment, nor do they contend that the

pleadings demonstrate that the balance must be struck in

favor of the City. Accordingly, we do not consider the

"balancing the interests" requirement. Moreover, although

the Defendants do contend that Schultea's speech did not

motivate their decision to reassign him, the causation issue

is not a legal issue for the court to resolve, but instead

must be presented to a jury if the plaintiff overcomes the

threshold hurdles. See Knowlton, 957 F.2d at 1177-78 & n.

6; Couglin v. Lee, 946 F.2d 1152, 1157 (5th Cir.1991).

12

addressing matters only of personal concern.12 Thompson v. City of

Starkville, 901 F.2d 456, 465 (5th Cir.1990). Whether Schultea's

speech was addressed to a matter of public concern is a question of

law. Caine, 943 F.2d at 1415. In the Rule 12(b)(6) setting, we

must determine the character of Schultea's speech by examining the

content, form, and context of his statements, as revealed here by

the pleadings. See Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690.

"In making this determination, the mere fact that the topic of the

employee's speech was one in which the public might or would have

had a great interest is of little moment." Terrell, 792 F.2d at

1362.

In light of these principles, Schultea's letters to the TDPS

can serve as the basis for a claim that he was reassigned for

exercising his First Amendment rights. Although Schultea made no

effort to communicate the contents of the letters to the public,

"[a] public employee who engages in whistleblowing does not

"forfeit[ ] his protection against governmental abridgment of

freedom of speech if he decides to express his views privately

rather than publicly.' " Brown, 804 F.2d at 337 (quoting Givhan v.

12

As we have stated,

Because almost anything that occurs within a public

agency could be of concern to the public, we do not

focus on the inherent interest or importance of the

matters discussed by the employee. Rather, 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 Tex. Sys. 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).

13

Western Line Consol. Sch. Dist., 439 U.S. 410, 414, 99 S.Ct. 693,

696, 58 L.Ed.2d 619 (1979)). More importantly, however, the

pleadings demonstrate that Schultea's letters relate to a matter of

public concern—the possibly criminal acts committed by a public

official. See Brawner v. City of Richardson, 855 F.2d 187, 191

(5th Cir.1988) (letter containing "serious allegations of possible

police misconduct" related to a matter of public concern where

letter was sent to the police chief, mayor, city council members,

and reporters at a local paper); Conaway v. Smith, 853 F.2d 789,

796 (10th Cir.1988) ("Speech which discloses any evidence of

corruption, impropriety, or other malfeasance on the part of city

officials, in terms of content, clearly concerns matters of public

import."); Brown, 804 F.2d at 327 (reports of possible financial

improprieties by a public employee related to a matter of public

concern). Consequently, Schultea has alleged the violation of a

constitutional right.

B

We must next determine whether the constitutional right

asserted by Schultea was clearly established at the time the

Defendants acted. See Siegert, 500 U.S. at 231, 111 S.Ct. at 1793.

"A right will be considered clearly established only when its

contours are sufficiently clear so that a reasonable official would

understand that what he is doing violates that right." Salas, 980

F.2d at 310. "This is not to say that an official action is

protected by qualified immunity unless the very action in question

has previously been held unlawful, but it is to say that in light

14

of pre-existing law the unlawfulness must be apparent." Anderson

v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d

523 (1987). "If reasonable public officials could differ on the

lawfulness of the defendant's action, the defendant is entitled to

immunity." White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992).

The Defendants correctly contend that the letters written by

Schultea indicate that Schultea spoke not as a citizen, but rather

as a law enforcement employee of the City who was reporting

possible criminal activity to the proper state agency.13 However,

the mere fact that Schultea reported Wood's possibly criminal acts

in his capacity as an employee does not mean that his speech is not

protected by the First Amendment. Instead, a public employee's

speech is unprotected only when the employee speaks "as an employee

upon matters only of personal concern." Connick, 461 U.S. at 147,

103 S.Ct. at 1690 (emphasis added); see also Brown, 804 F.2d at

337 (allegation that the plaintiff was retaliated against because

he, "as a diligent public servant, ... repeatedly reported the

alleged corruption, or potential for corruption, to his superiors"

stated a cognizable First Amendment claim if pled with the

requisite particularity). Here, Schultea's speech was calculated

13

Schultea's letter to the director of the TDPS stated: "I

am writing to pass some information on to you, for your

consideration...."; "I will give you the story as it was told to

me and then what you choose to do with it is fine with me."; and

"I believe that there is possibly some criminal activity involved

in these transactions and thought I would pass this along to you

for your consideration." Indeed, Schultea specifically alleges

in the complaint that he informed the TDPS of possible wrongdoing

by Wood "in an attempt to carry out the duties and

responsibilities of my office of Police Chief in Tomball."

15

to disclose possible misconduct by a public official and not to air

only personal disputes or grievances with no relevance to the

public interest. Compare Gillum v. City of Kerrville, 3 F.3d 117,

121 (5th Cir.1993) (holding that the City could discharge a police

officer who merely challenged his role in an investigation of

police corruption without running afoul of the First Amendment),

cert. denied, --- U.S. ----, 114 S.Ct. 881, 127 L.Ed.2d 76 (1994).

No reasonable public official in 1992 could have assumed that he

could retaliate against an employee because that employee disclosed

instances of misconduct by a public official. See Conaway, 853

F.2d at 796-97 (public employee's reports of illegal conduct to his

superiors addressed a matter of public concern). Accordingly, the

district court did not err in refusing to grant the Defendants'

motion to dismiss Schultea's First Amendment claim.

VII

For the foregoing reasons, we AFFIRM in part, REVERSE in part,

and REMAND this case for further proceedings consistent with this

opinion.

16