Petition for Writ of Certiorari — City of Dallas v. Kirks

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ogupreme Court, U.S.

(-) FILED

961927 JUN 31997

NO. geriee or tHE GLERK

In The

Supreme Court of the United States

October Term, 1996

CITY OF DALLAS, TEXAS,

WILLARD ROLLINS, RICHARD HATLER,

Petitioners,

VS.

RICHARD KIRKS and JAN FORSYTH,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Crry ATTORNEY OF THE City OF DALLAS

Sam A. LINDsAy

City Attorney

Texas State Bar No. 12368900

JANice S. Moss

Assistant City Attorney

Texas State Bar No. 14586050

LizBeTH IsLas

Assistant City Attorney

Texas State Bar No. 00787750

7CN Dallas City Hall

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510 ~— Telephone

(214) 670-3515 — Telecopier

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

I. DOES A LATERAL TRANSFER OF EMPLOYEES,

FROM THE DAY SHIFT IN THE INTELLIGENCE DIVI-

SION TO THE NIGHT SHIFT IN THE PATROL DIVISION

WITH GENUINE RESPONSIBILITIES AND DUTIES IN

THE NEW POSITION AND WITH NO REDUCTION IN

SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PRO-

MOTIONAL OPPORTUNITIES, CONSTITUTE AN

ADVERSE EMPLOYMENT ACTION UNDER THE FIRST

AMENDMENT?

If. IS A PUBLIC OFFICIAL ENTITLED TO QUALIFIED

IMMUNITY WHEN HE LATERALLY TRANSFERS

EMPLOYEES, BECAUSE OF STATEMENTS MADE BY

THE EMPLOYEES AND THE POTENTIAL DISRUPTION

IN THE WORKPLACE, FROM THE DAY SHIFT IN THE

INTELLIGENCE DIVISION TO THE NIGHT SHIFT IN

THE PATROL DIVISION WITH GENUINE RESPON-

SIBILITIES AND DUTIES IN THE NEW POSITION AND

WITH NO REDUCTION IN SALARY, RANK, GRADE,

BENEFITS, OR LOSS OF PROMOTIONAL OPPOR-

TUNITIES?

Ill. IS A SPEAKER’S MOTIVATION OR INTEREST IN

“SPEAKING OUT” A DETERMINATIVE FACTOR IN

DECIDING WHETHER THE SPEECH ADDRESSES A

MATTER OF PUBLIC CONCERN?

IV. DOES THE PICKERING BALANCE REQUIRE A

SHOWING OF ACTUAL DISRUPTION RATHER THAN

A SHOWING OF A POTENTIAL DISRUPTION OF, OR

QUESTIONS PRESENTED FOR REVIEW - Continued

LIKELY INTERFERENCE WITH, THE EFFICIENCY OF

THE WORKPLACE BEFORE THE EMPLOYER MAY

TAKE EMPLOYMENT ACTION?

V. CAN A MUNICIPALITY BE HELD LIABLE UNDER

42 U.S.C. § 1983 IF THE DISTRICT COURT HELD THAT

NO INDIVIDUAL DEFENDANT WAS A POLICY-

MAKER, AND RESPONDENTS FAILED TO ESTABLISH

THAT THE CITY HAD A POLICY OR CUSTOM OF

RETALIATION AGAINST EMPLOYEES WHO REPORT

ALLEGED VIOLATIONS OF LAW?

VI. SHOULD THE ISSUE OF PUNITIVE DAMAGES

UNDER BOTH 42 U.S.C. § 1983 AND THE TEXAS WHIS-

TLEBLOWER ACT HAVE BEEN SUBMITTED TO THE

JURY ABSENT A SHOWING OF MALICIOUS INTENT

OR RECKLESS DISREGARD, AND, ALTERNATIVELY,

WAS THE AWARD OF PUNITIVE DAMAGES GROSSLY

EXCESSIVE AND UNREASONABLE?

Vil. DID THE TEXAS WHISTLEBLOWER ACT PRO-

VIDE FOR LIABILITY IN 1989 IF THE ALLEGED DIS-

CRIMINATION WAS BASED ON A LATERAL

TRANSFER, FROM THE DAY SHIFT IN THE INTEL-

LIGENCE DIVISION TO THE NIGHT SHIFT IN THE

PATROL DIVISION WITH GENUINE RESPONSIBILITIES

AND DUTIES IN THE NEW POSITION AND WITH NO

REDUCTION IN SALARY, RANK, GRADE, BENEFITS,

OR LOSS OF PROMOTIONAL OPPORTUNITIES, AND

IF THE REPORT OF ALLEGED VIOLATION OF LAW

WAS NOT THE REASON FOR THE LATERAL TRANS-

FER?

iii

PARTIES TO THIS PROCEEDING

The parties to this proceeding are as follows:

City of Dallas Defendant-Petitioner

Willard Rollins Defendant-Petitioner

Richard Hatler Defendant-Petitioner

Mack Vines Defendant Only

Jan Forsyth Plaintiff-Respondent

Richard Kirks Plaintiff-Respondent

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...........

PARTIES TO THIS PROCEEDING..................

TABLE OF CONTENTS 0.2 .cccccccccccccensndvccens

TABLE GP AUT eee eee osc ccc cccccvesncesconeves

CITATIONS OF OFFICIAL AND UNOFFICIAL

PEP CNG oo kc on Sabin ds solver ves tadusecess

STATEMENT OF JURISDICTION...................

CONSTITUTIONAL PROVISIONS AND STATUTES...

STATIGRITT Ge TET Coe win 6 i os nics cise sevessss.

ae gg Be ROP ere rer ee eT Ter

2. Basis of Federal Jurisdiction in Court of

| Serre rere Corer

ARGUMENT AND AUTHORITIES

REASONS RELIED ON FOR ALLOWANCE OF THE

WEERED 6 4cn ne dee cans menede coe seaces hep mbie eens

I. A LATERAL TRANSFER OF EMPLOYEES,

FROM THE DAY SHIFT IN THE INTEL-

LIGENCE DIVISION TO THE NIGHT SHIFT

IN THE PATROL DIVISION WITH GENUINE

RESPONSIBILITIES AND DUTIES IN THE

NEW POSITION AND WITH NO REDUCTION

IN SALARY, RANK, GRADE, BENEFITS, OR

LOSS OF PROMOTIONAL OPPORTUNITIES,

DOES NOT AS A MATTER OF LAW CONSTI-

TUTE AN ADVERSE EMPLOYMENT ACTION

UNDER THE FIRST AMENDMENT...........

IT.

Il.

TABLE OF CONTENTS - Continued

Page(s)

A PUBLIC OFFICIAL IS ENTITLED TO QUAL-

IFIED IMMUNITY WHEN HE LATERALLY

TRANSFERS EMPLOYEES IF THE

EMPLOYEES MAINTAIN GENUINE RESPON-

SIBILITIES AND DUTIES IN THE NEW POSI-

TION AND SUFFER NO REDUCTION IN

SALARY, RANK, GRADE, BENEFITS, OR LOSS

OF PROMOTIONAL OPPORTUNITIES........

A. The Law Must Be Clearly Established mi a

Particularized Sense. ..........ccccccscees

B. A Defendant Enjoys Qualified Immunity if

a Reasonable Officer Could Have Believed

that the Lateral Transfers Were Lawful, in

Light of Clearly Established Law and the

Information He Possessed at the Time of

a ia

C. If Reasonable Public Officials Could Differ on

the Lawfulness of Petitioners’ Actions, They

Are Entitled to Qualified Immunity.........

D. The District Court Erred by Refusing to

Grant Defendants’ Motions for Judgment

as a Matter of Law Regarding Defendants’

Right to the Defense of Qualified Immu-

ets EE eee Eee Tere

E. Alternatively, Triable Issues of Fact Exist

Regarding the Qualified Immunity Defense

That Should Be Presented to the Jury.....

A SPEAKER’S MOTIVATION OR INTEREST IN

“SPEAKING OUT” IS A DETERMINATIVE

FACTOR IN DECIDING WHETHER THE

SPEECH ADDRESSES A MATTER OF PUBLIC

Ra AR irs seen cau esd waves fics

TABLE OF CONTENTS - Continued

Page(s)

IV. THE PICKERING BALANCE DOES NOT

VI.

REQUIRE A SHOWING OF ACTUAL DISRUP-

TION IN THE WORKPLACE, BUT ONLY A

SHOWING OF A POTENTIAL DISRUPTION

OF, OR LIKELY INTERFERENCE WITH, THE

EFFICIENCY OF THE WORKPLACE BEFORE

THE EMPLOYER MAY TAKE EMPLOYMENT

RATING 6 i ecni sd ccedacdeWesdetpntenenetians

A MUNICIPALITY CANNOT BE HELD LIA-

BLE UNDER 42 U.S.C. §1983 IF THE DISTRICT

COURT HELD THAT NO INDIVIDUAL

DEFENDANT WAS A POLICYMAKER, AND

RESPONDENTS FAILED TO ESTABLISH THAT

THE CITY HAD A POLICY OR CUSTOM OF

RETALIATION AGAINST EMPLOYEES WHO

REPORT ALLEGED VIOLATIONS OF LAW. ..

THE ISSUE OF PUNITIVE DAMAGES UNDER

BOTH 42 U.S.C. §1983 AND THE TEXAS

WHISTLEBLOWER ACT SHOULD NOT HAVE

BEEN SUBMITTED TO THE JURY ABSENT A

SHOWING OF MALICIOUS INTENT OR

RECKLESS DISREGARD, AND, ALTER-

NATIVELY, THE AWARD OF PUNITIVE DAM-

AGES WAS GROSSLY EXCESSIVE AND

eo ee Os ee ery rere eee

vii

TABLE OF CONTENTS - Continued

Page(s)

Vil. THE TEXAS WHISTLEBLOWER ACT DID

NOT PROVIDE FOR LIABILITY IN 1989 IF

THE ALLEGED DISCRIMINATION WAS

BASED ON A LATERAL TRANSFER, FROM

THE DAY SHIFT IN THE INTELLIGENCE

DIVISION TO THE NIGHT SHIFT IN THE

PATROL DIVISION WITH GENUINE

RESPONSIBILITIES AND DUTIES IN THE

NEW POSITION AND WITH NO REDUCTION

IN SALARY, RANK, GRADE, BENEFITS, OR

LOSS OF PROMOTIONAL OPPORTUNITIES,

AND IF THE REPORT OF THE ALLEGED VIO-

LATION OF LAW WAS NOT THE REASON

FOR THE LATERAL TRANSFER. ............ 26

8 Oe 29

viii

TABLE OF AUTHORITIES

Page(s)

A. Cases

ACLU v. Wicomico County, Md., 999 F.2d 780 (4th

CO CE Nd vedccdakerhgeehssesun cheat cones Ter... 7

Agosto-De-Feliciano v. Aponte-Roque, 889 F.2d 1209

Ce EE FW 6 Weed eis bebe ah nl be RAMEN EK bce 8

Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993)........ 8

American Surety Co. of New York v. Axtell Co., 120

Tex.. 166, 36. S.W.2G 7iS (USSG) oc viccscccsccccnccics 28

Anderson v. Creighton, 483 U.S. 635 (1987) ....... passim

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ..17, 25

Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th

Cir. 1986), cert. denied, 488 U.S. 848 (1988) ........ 26

Bausworth v. Hazelwood School Dist., 986 F.2d 1197

CR Ee. SOs oon cn deacnv nce ren eke ei nae keene cies 19

Bennis v. Gable, 823 F.2d 723 (3rd Cir. 1987).......... 8

Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994)......... 19

Board of County Commissioners v. Umbehr, 518 U.S.

cat SOE Wee GOP CRP PE es cit ev asidenivccescccs 21

Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987)...... 12, 14

Bowman v. Pulaski County Special School Dist., 723

a ee GE SN hide hace Vas euiencsicetsiess 8

Busby v. City of Orlando, 931 F.2d 764 (11th Cir.

| SPE E EOE TT CP eTT eer Ce TET ET Tre E Te TTT ire 12, 14

Carey 0. Piphus, 455 US. 267 (1976) .....ccrcccccenes 24

Childers v. Independent School Dist., 676 F.2d 1338

CE SE eG Cel seve sk neater whesaeaxaute bass 8

TABLE OF AUTHORITIES - Continued

Page(s)

City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex.

| ES PPE TERT ee ee pe eee eee TT yee 29

City of Ingleside v. Kneuper, 768 S.W.2d 451

(Tex.App.-Austin 1989, writ denied)............... 26

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

2: PP ee iret Pe ees y rer Sr rey rey Paar 24

City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) .... 23

Connick v. Myers, 461 U.S. 138 (1983)............ passim

Dahm v. Flynn, 60 F.3d 253 (7th Cir. 1994)............ 7

Dartland v. Metropolitan Dade County, 866 F.2d 1321

eB Re RP Ee it SP a an acre 12

Davis v. Ector County, Texas, 40 F.3d 777 (5th Cir.

DG OE Ce Pees asta a GASES cavdeiecccn: 19

Davis v. Scherer, 468 U.S. 183 (1984)............... 9 15

DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995) .. 11, 14, 19

Fiorillo v. U.S. Dep't of Justice, Bureau of Prisons, 795

ce a ee ere 19

First Nat’l Bank of Arizona v. Cities Serv. Co., 391

fe | ES rn See ee 17

Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994)........... 4

Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir.

WS cs ivi arb ek kecieiias concn tabnnesaereey cars passim

Frank v. Relin, 1 F.3d 1317 (2d Cir.), cert. denied, 510

ee | Pe ee en eee 11, 14, 17

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996)...... 18

Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993),

COVE, GONE, DAO TID. TOG e CHE wave kdbccvcvcccess 19

TABLE OF AUTHORITIES - Continued

Page(s)

Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th

Cir. 1991), cert. denied, 503 U.S. 1011 (1992) ....... 25

Hansen v. Soldenwagner, 19 F.3d 573 (11th Cir. 1994) .... 11

Harlow v. Fitzgerald, 457 U.S. 800 (1982)......... passim

Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988) ..12, 14

Hunter v. Bryant, 502 U.S. 224 (1991)............. 10, 15

Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991).......... 17

Jett v. Dallas Indep. School Dist., 491 U.S. 701 (1989) .... 23

Johnson v. Clifton, 74 F.3d 1087 (11th Cir.), cert.

denied, ___ U.S. __, 136 L.Ed.2d 15 (1996) ........ 18

Johnson v. Multnomah County, 48 F.3d 420 (9th Cir.

1995), cert. denied, ___ U.S. ___, 132 L.Ed.2d 858

i 6s beg Uden Nha ne Reeadenin Vaan eka k Op aes 19

Karnes v. Skrutski, 62 F.3d 485 (3rd Cir. 1995)... 11, 14, 17

Kelley v. Johnson, 425 U.S. 238 (1976) ................ 21

Kompare v. Stein, 801 F.2d 883 (7th Cir. 1986)........ 14

Malley v. Briggs, 475 U.S. 335 (1986)............. passim

Manhattan Beach Police Officers Ass’n v. City of

Manhattan Beach, 881 F.2d 816 (9th Cir. 1989)....... 8

Matherne v. Wilson, 851 F.2d 752 (5th Cir. 1988)...... 12

McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir.

Se CET Eee EE PEP CTT eT ee ee TET CEEe 19

Medina v. City and County of Denver, 960 F.2d 1493

og Oe Re eee error te rer eee 11, 14

Memphis Community School Dist. v. Stachura, 477

ee EE ire 0 4 ek kad k4 cae eek Lote el ek be 24

TABLE OF AUTHORITIES - Continued

Page(s)

Monell v. New York City Dep’t. of Social Servs., 436

Se SD EE Caldn clava ccad eae ee wha bone iuuie scat 22

Muhammad v. Wainwright, 839 F.2d 1422 (11th Cir.

EE ROE hee ne ba ee W Kink dd Weed es whe do iw 12

Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert.

a Ry. res 12, 14

NAACP v. Claiborne Hardware Co., 458 U.S. 886

SY ciae aa we dad atin on wis useless 6.6n0<ca ce 18

Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), cert.

oo ee ee 17

O’Connor v. Steeves, 994 F.2d 905 (1st Cir.), cert.

dented, SIO US. 1024 (1993)... .. 0 cc ccccccscccccss 19

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)....... 22

Pickering v. Board of Education, 391 U.S. 563 (1968) ..13, 14

Pierce v Texas Dep’t of Criminal Justice, Institutional

Div., 37 F.3d 1146 (5th Cir. 1994)................... 7

Procunier v. Navarette, 434 U.S. 555 (1978) ........... 10

Rogers v. Miller, 57 F.3d 986 (11th Cir. 1995).......... 7

Rookard v. Health and Hosp. Corp., 710 F.2d 41 (2d

RIE 00 E405 cWA rhs bu) so6n de Neb ae oie ve cones ss 8

Rutan v. Republican Party of Illinois, 497 U.S. 62

SRS AVAN oR aatbuhave o40ess00cuceaned sauces passim

Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991) ........ 12

Smith v. Fruin, 28 F.3d 646 (7th Cir. 1994), cert.

Gonted, SIS UG. 2003 (1998). oo. oon cc ccc ceccccccase 19

Smith v. Wade, 461 U.S. 30 (1983) ................... 24

Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) ............ 19

xii

TABLE OF AUTHORITIES - Continued

Page(s)

Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360 (5th

Cir. 1986), cert. denied, 479 U.S. 1064 (1987) ....... 18

Thorsted v. Kelley, 858 F.2d 571 (9th Cir. 1988)....... 17

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.

PUTT CET ET ETI TY) OTCPECLTEN TT TT eT CTT TOee 25

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .... 27

United States v. National Treasury Employees Union,

jes oe Pe eer 21

Walsh v. Ward, 991 F.2d 1334 (7th Cir. 1993).......... 7

Waters v. Churchill, 511 U.S. 661 (1994)........... 13, 20

White v. Walker, 950 F.2d 972 (5th Cir. 1991)...... 11, 17

Williams v. Board of Regents, 629 F.2d 993 (5th Cir.

1980), cert. denied, 452 U.S. 926 (1981)............. 21

Zamboni v. Stamler, 847 F.2d 73 (3rd Cir. 1988), cert.

Se Wee GE SK ac rah enn os ereodesices 19

B. CONSTITUTION

ra CO: MING. Bon ccc ccstaccccss ere 2

Se en SI BONG ED on Sie Wns covuasccasancdens. 2

Pe ES hrc tenCncersdecacaaepeabnenens passim

C. STATUTES

oo oa, sv haanedoaeaes aus 27

ss 5 is Sensckc de icnded ills oxides 2

a icin is, cat cals vues utes 5, 27

We iiss cis hdc Fe cede 5

xiii

TABLE OF AUTHORITIES - Continued

Page(s)

ee I 03 Sidssescidddeceecenscauniceeue 5

id a a o0 20s dkeerndmépanhedewualeats 5, 27

a sik. on cnus cowed dusdsgusksseunianie ee 2

Pho pn denwrdndaddsncuicuueckecas passim

i aknk ke niliieedeida deka au dccua Wack Oto 2

Tex. Govt. Code §554.001 (West. Supp. 1997) ........ 27

Tex. Govt. Code §554.001(3) (West Supp. 1997)...... 28

Tex. Govt. Code §554.002 (West Supp. 1997)......... 27

Tex. Govt. Code §554.002 (West 1994) (amended

Mande Sse bebdWs Sanne wens obsevincnse cla 2, 27

Texas Whistleblower Act.....................05. passim

D. Otner AUTHORITIES

Tex. Gov’t Code §554.001 historical note (West

Supp. 1997) [Act of June 15, 1995, 74th Leg., Ch.

WES 68 FGG AU bie beds os eee eka onc kodak wiconn 28

ee ce

ON le MAB SL IRA iH ht AC LENS A AE ast 008 ot

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF THE UNITED

STATES SUPREME COURT:

Petitioners City of Dallas, Texas, Willard Rollins, and

Richard Hatler (“Petitioners” or “the City,” “Rollins” and

“Hatler”) respectfully pray that this Honorable Court

grant a writ of certiorari to review the judgment and

denial of petition for rehearing issued March 31, 1997 and

the opinion issued August 16, 1996 by the United States

Court of Appeals for the Fifth Circuit (“the Fifth Circuit”)

in favor of Appellees Jan Forsyth and Richard Kirks

(“Respondents” or “Forsyth” and “Kirks”). In support

thereof, Petitioners respectfully show the Court as follows:

CITATIONS OF OFFICIAL AND

UNOFFICIAL REPORTS BELOW

The Fifth Circuit’s opinion cited as Forsyth v. City of

Dallas, 91 F.3d 769 (5th Cir. 1996), affirms the unreported

opinion and the amended final judgment of the United

States District Court for the Northern District of Texas,

Dallas Division (“the district court”).

STATEMENT OF JURISDICTION

Petitioners file this petition for writ of certiorari

appealing from the Fifth Circuit’s August 16, 1996 opin-

ion and judgment, affirming the district court’s judgment;

Fifth Circuit’s November 15, 1996 order, that Respon-

dents’ supplemental motion to amend the August 16,

1996 judgment be granted to the extent necessary to

remand the attorneys’ fees issue; Fifth Circuit’s March 31,

1997 amended judgment issued as mandate; Fifth Cir-

cuit’s March 31, 1997 order denying petition for rehear-

ing; the district court’s April 3, 1995 amended final

judgment; and the district court’s January 13, 25, and 27,

1995 oral and written orders denying Petitioners’ motions

for judgment as matter of law and objections to jury

charge. This Court has jurisdiction under 28 U.S.C.

§§1254(1) and 2106 to review on a writ of certiorari the

Fifth Circuit’s and district court’s judgments.

CONSTITUTIONAL PROVISIONS AND STATUTES

The following constitutional provisions and statutes

are involved in this case: U.S. Const. amend. I; U.S.

Const. amend. XIV, §1; 42 U.S.C. §§1983 and 1988 (1994);

Tex. Govt. Code §554.002 (West 1994) (amended 1995);

and Tex. Gov’t Code §§554.001-554.002 (West Supp. 1997).

See App T.

STATEMENT OF THE CASE

1. Statement of Facts

This case presents important questions of federal law

which include a public official’s entitlement to qualified

immunity. Respondents were partners in the Intelligence

Division of the Dallas Police Department (“DPD”), and

worked in an undercover investigation with an informant

and with the Drug Enforcement Agency and Federal

Bureau of Investigation. Respondents filed this lawsuit

against Petitioners complaining of their transfer from

DPD Intelligence Division to DPD Patrol Division. DPD

Internal Affairs Division (“IAD”) investigated Respon-

dents in September 1988 regarding a citizen’s complaint

that Forsyth had engaged in improprieties and corruption

in an undercover investigation with Kirks, specifically

that Forsyth arranged for DPD to drop a murder-for-hire

case involving her informant, knew about and failed to

report to the proper authorities a burglary committed by

her informant, misrepresented information to a judge,

had a sexual relationship with her informant, arranged

for the dismissal of $30,000 in City fines pending against

her informant, and that her informant would receive

illegal drugs in an undercover drug transaction. IAD

exonerated Respondents and gave Forsyth a copy of the

report. Respondents complained to DPD, based on that

report, that several DPD officers had engaged in illegal

wiretapping.

Respondents contend DPD ignored their complaint.

Respondents then “investigated” the wiretapping,

recorded conversations with their superiors, and told

their attorneys to “go public” with the IAD report. On

February 5, 1989, The Dallas Morning News ran a front

page article on Respondents’ allegations. Beginning on

February 7, 1989, Hatler, a member of Respondents’ chain

of command, expressed his concern to Respondents

regarding their possible lack of objectivity and the

appearance of their engaging in a personal vendetta

should a criminal case be filed against the complaining

citizen. Respondents testified that Rollins and Hatler told

them to “stop the publicity” and threatened to transfer

them from the Intelligence Division if any further public-

ity ensued. On February 13, 1989, Respondents sued the

City and DPD officers over the wiretaps!, and The Dallas

Morning News ran a story about the wiretap lawsuit the

next day.

On February 15, 1994, Hatler transferred Respon-

dents because of the lack of confidence that existed

between Respondents and their chain of command,

Respondents’ personal involvement and possible ven-

detta in the investigation of the complaining citizen, the

release of confidential information to individuals outside

DPD regarding ongoing investigations and the names of

informants and the potential effect on both the safety of

the informants, and DPD’s ability to maintain such inves-

tigations and informants in the future, and Respondents’

deception with respect to notifying the chain of command

of those against whom they intended to file suit regard-

ing their claims of wiretapping. See App. Z and AA.

When Forsyth and Kirks were transferisd from the day

shift in the Intelligence Divisisn to the night shift in

Patrol Division, they suffered no reduction in salary,

rank, grade, benefits, or loss of promotional oppor-

tunities, and, as patrol officers for the City of Dallas, had

genuine responsibilities and duties, and actually received

increased responsibilities and pay as field training offi-

cers. See App. X and Y.

The case was tried to a jury from January 3-18, 1995. The

court overruled Petitioners’ Motion for Judgment as a Matter

of Law and submitted the case to the jury on January 13,

1 In this related lawsuit, the Fifth Circuit affirmed the

district court’s dismissal of the wiretap lawsuit in Forsyth v.

Barr, 19 F.3d 1527 (5th Cir. 1994).

Sy tO eT ret ns Saba. a

1995. The jury returned a verdict for Respondents as follows:

judgment for Kirks in the amounts of $75,000 for mental

anguish, $80,000 for loss of past earnings, and $675,000 for

future lost earning capacity, and judgment for Forsyth in the

amount of $100,000 for mental anguish; judgment for

Respondents in the amount of $125,000 in punitive damages

against Petitioners under 42 U.S.C. §1983 and in the amount

of $750,000 in punitive damages against the City under the

Texas Whistleblower Act.

The district court entered its Order Denying in Part

Defendants’ Amended Renewed Motion for Judgment as

a Matter of Law and Denying in Part Alternative Motion

for New Trial on April 3, 1995 and deleted the $125,000

punitive damages award to Respondents against the City

under 42 U.S.C. §1983, and deleted Kirks’ awards of

$80,000 for loss of past earnings and $675,000 for loss of

future earning capacity. The district court entered its

Amended Final Judgment on April 3, 1995, and Peti-

tioners timely filed a notice of appeal on April 17, 1995.

The Fifth Circuit affirmed the district court’s judgment on

August 16, 1996, and denied Petitioners’ Petition for

Rehearing and Suggestion for Rehearing en Banc and

entered judgment on March 31, 1997.

2. Basis of Federal Jurisdiction in Court of First

Instance

Jurisdiction in the court of first instance, the United

States District Court for the Northern District of Texas,

Dallas Division, is based on the following: 28 U.S.C.

§1441; 28 U.S.C. §1331; 28 U.S.C. §1343(a); and 28 U.S.C.

§1367(a).

ARGUMENT AND AUTHORITIES

REASONS RELIED ON

FOR ALLOWANCE OF THE WRIT

I. A LATERAL TRANSFER OF EMPLOYEES, FROM

THE DAY SHIFT IN THE INTELLIGENCE DIVI-

SION TO THE NIGHT SHIFT IN THE PATROL

DIVISION WITH GENUINE RESPONSIBILITIES

AND DUTIES IN THE NEW POSITION AND WITH

NO REDUCTION IN SALARY, RANK, GRADE,

BENEFITS, OR LOSS OF PROMOTIONAL OPPOR-

TUNITIES, DOES NOT AS A MATTER OF LAW

CONSTITUTE AN ADVERSE EMPLOYMENT

ACTION UNDER THE FIRST AMENDMENT.

As a matter of law, the lateral transfer at issue does

not constitute an adverse employment action based on

the facts presented in this case. Petitioners have found no

case by this Court which has decided the important fed-

eral question of whether a lateral transfer, from the day

shift in the Intelligence Division to the night shift in the

Patrol Division with genuine responsibilities and duties

in the new position and with no reduction in pay, rank,

grade, benefits or loss of promotional opportunities, con-

stitutes an adverse employment action. Cf. Rutan v.

Republican Party of Illinois, 497 U.S. 62 (1990) (The Court

only considered the denial of transfers to workplaces

much closer to the employees’ homes, resulting in longer

hours and maintenance expenses. Thus, the denial of

transfers had an adverse economic impact on the

employees.) In this case, the jury was instructed that

adverse employment actions are discharges, demotions,

refusals to hire, refusals to promote, and reprimands. See

App. W. The Fifth Circuit held that the lateral transfers in

this case were demotions because of Respondents’ per-

ception that the new positions were less prestigious and

interesting, although the court conceded that a plaintiff's

subjective perception is not enough to show that a demo-

tion occurred. Forsyth, 91 F.3d at 774. The Fifth Circuit’s

holding that a lateral transfer to a position with no loss in

pay, rank, grade, benefits or promotional opportunities

and with genuine responsibilities and duties constitutes

an adverse employment action under the First Amend-

ment hands any disgruntled public employee transferred

against his will a cause of action not previously recog-

nized that the employee can and will use to intimidate his

superiors and paralyze local governments. See, e.g., Walsh

v. Ward, 991 F.2d 1334, 1346 (7th Cir. 1993). The Fifth

Circuit’s holding creates a right not previously recog-

nized by this Court. This Court should accept certiorari

and review this case because it has never held that such a

transfer is actionable as an adverse employment action,

and because the district court and the Fifth Circuit erred

in denying Petitioners’ motions for judgment as a matter

of law.

This Court also should decide the important federal

question presented because there is a clear conflict in the

circuits whether a lateral transfer with no loss in pay and

rank is an adverse employment action under the First

Amendment. Several circuits hold that such a transfer is

not an adverse employment action: Rogers v. Miller, 57

F.3d 986, 992 (11th Cir. 1995) (Adverse employment

actions are defined as discharges, demotions, refusals to

hire, refusals to promote, and reprimands.); Pierce v. Texas

Dep't of Criminal Justice, Institutional Div., 37 F.3d 1146,

1149 (Sth Cir. 1994); Dahm v. Flynn, 60 F.3d 253, 258 (7th

Cir. 1994) (The shifting of responsibilities in the plaintiff's

job was not an obviously adverse action, such as termina-

tion, demotion, or loss in benefits or salary.); Akers v.

Caperton, 998 F.2d 220 (4th Cir. 1993); Agosto-De-Feliciano

v. Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (A

transfer which meant a limited blow to pride and would

have increased unreimbursed commuting costs is not an

adverse employment action.); Bennis v. Gable, 823 F.2d 723

(3rd Cir. 1987).

Other circuits hold that a transfer with no loss in pay

and rank can be an adverse employment action: Forsyth v.

City of Dallas, 91 F.3d 769 (5th Cir. 1996); Manhattan Beach

Police Officers Ass'n v. City of Manhattan Beach, 881 F.2d 816

(9th Cir. 1989); Bowman v. Pulaski County Special School

Dist., 723 F.2d 640 (8th Cir. 1983); Rookard v. Health and

Hosp. Corp., 710 F.2d 41 (2d Cir. 1983); Childers v. Indepen-

dent School Dist., 676 F.2d 1338, 1342 (10th Cir. 1982). This

Court should decide this important federal question

regarding lateral transfers to resolve the conflict among

the circuits and to ensure uniformity of the law in the

circuits.

Il. A PUBLIC OFFICIAL IS ENTITLED TO QUALI-

FIED IMMUNITY WHEN HE LATERALLY TRANS-

FERS EMPLOYEES IF THE EMPLOYEES

MAINTAIN GENUINE RESPONSIBILITIES AND

DUTIES IN THE NEW POSITION AND SUFFER

NO REDUCTION IN SALARY, RANK, GRADE,

BENEFITS, OR LOSS OF PROMOTIONAL

OPPORTUNITIES.

Rollins and Hatler have been denied their legal enti-

tlement to qualified immunity as previously established

by this Court. Public officials who act within the scope of

their discretionary authority and in the course of their

official duties are entitled to the defense of qualified

immunity, which shields them from suit as well as lia-

bility for civil damages, where their conduct does not

violate “clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Davis v. Scherer, 468 U.S. 183, 191 (1984) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)); Malley v. Briggs, 475

U.S. 335, 341 (1986). A police officer is entitled to quali-

fied immunity if he can establish that his conduct was

lawful in light of clearly established law and the informa-

tion he possessed at the time of the action or conduct in

question. Anderson v. Creighton, 483 U.S. 635, 641 (1987).

The relevant question is whether a reasonable officer

could have believed that a defendant’s action was law-

ful, in light of the clearly established law and the infor-

mation possessed by the defendant. Anderson, 483 U.S. at

641. If officers of reasonable competence could disagree

on whether an action is legal, immunity should be recog-

nized. Malley, 475 U.S. at 341. In light of Harlow and

Anderson, the question in this case is whether a reason-

able officer could have believed that Petitioners’ transfer

of Respondents was lawful in light of clearly established

law and the information they possessed. See Anderson, 483

U.S. at 641; Malley, 475 U.S. at 341.

A. The Law Must Be Clearly Established in a Par-

ticularized Sense.

The Fifth Circuit’s generalized ruling in Forsyth that

the law was clearly established that an officer could not

retaliate against another for exercising First Amendment

rights is contradictory to United States Supreme Court

rulings. “The right the official is alleged to have violated

must have been ‘clearly established’ in a more partic-

ularized, and hence more relevant sense: The contours of

the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates

that right.” Anderson, 483 U.S. at 640 (emphasis added). If

the test of “clearly established law” were to be applied at

a level of generality that bears no relationship to the

“ ‘objective legal reasonableness’ that is the touchstone of

Harlow” and merely required, for example, that a plaintiff

prove that a defendant’s actions violated his due process

rights, plaintiffs would be able to convert the “rule of

qualified immunity . . . into a rule of virtually unqualified

liability simply by alleging violation of extremely abstract

rights.” Anderson, 483 U.S. at 639. Many general constitu-

tional rights are clearly established and yet so general

that it often will be unclear whether particular conduct

violates the right. See Anderson, 483 U.S. at 639. The

courts must ask whether the official acted reasonably

under settled law in the circumstances, not whether

another reasonable, or more reasonable, interpretation of

the events can be constructed years after the fact. Hunter

v. Bryant, 502 U.S. 224, 228 (1991). An official cannot

reasonably be expected to be aware of a constitutional

right that has not yet been declared. Procunier v.

Navarette, 434 U.S. 555, 565 (1978).

This Court ruled for the first time that transfers were

actionable under the First Amendment in 1990, when the

Court dealt with transfers which had an economic impact

on the one transferred, not with subjective beliefs regard-

ing job assignments. See Rutan, 497 U.S. at 73-74. The

Fifth Circuit’s ruling that the law was clearly established

that a transfer from a position as senior corporal in the

Intelligence Division to a position as senior corporal in

the Patrol Division with no loss in salary, rank, grade,

benefits, loss of promotional opportunities and with gen-

uine responsibilities and duties in the new position is not

supported by precedent of this Court.

Likewise, the Fifth Circuit’s generalized ruling

regarding qualified immunity conflicts with rulings of

other circuit courts and with its own rulings. In deciding

the question of whether a right is clearly established, the

circuit courts hold that the right must be a particular

right, which must be clearly established, and not a gen-

eral or abstract principle, for an individual defendant not

to be entitled to immunity. Karnes v. Skrutski, 62 F.3d 485,

491-92 (3rd Cir. 1995); DiMeglio v. Haines, 45 F.3d 790, 803

(4th Cir. 1995) (“The right must be sufficiently partic-

ularized to put potential defendants on notice that their

conduct is probably unlawful.”); Hansen v. Soldenwagner,

19 F.3d 573, 576 (11th Cir. 1994) (“When no bright-line

standard puts the reasonable public employer on notice

of a constitutional violation, the employer is entitled to

immunity except in the extraordinary case where Picker-

ing balancing would lead to the inevitable conclusion

that the [act taken against] the employee was unlawful.”)

(emphasis in original); Frank v. Relin, 1 F.3d 1317, 1328 (2d

Cir.), cert. denied, 510 U.S. 1012 (1993); Medina v. City and

County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)

(“Allegations of. constitutional violations that require

courts to balance competing interests may make it more

difficult to find the law ‘clearly established’ when assess-

ing claims of qualified immunity.”); White v. Walker, 950

F.2d 972, 975 (5th Cir. 1991); Slattery v. Rizzo, 939 F.2d 213,

216 (4th Cir. 1991); Busby v. City of Orlando, 931 F.2d 764,

773-74 (11th Cir. 1991) (The Supreme Court has never

established a bright-line test for determining when a

public employee may be disciplined in response to that

employee’s speech.); Dartland v. Metropolitan Dade County,

866 F.2d 1321, 1323 (11th Cir. 1989); Matherne v. Wilson,

851 F.2d 752, 756-57 (5th Cir. 1988); Hodorowski v. Ray, 844

F.2d 1210, 1216-17 (5th Cir. 1988); Muhammad v. Wain-

wright, 839 F.2d 1422, 1424 (11th Cir. 1987); Borucki v.

Ryan, 827 F.2d 836, 838 (1st Cir. 1987) (“Official has a

presumptive knowledge of constitutional standards,” but

is “not expected to determine the manner in which the

law’s grey areas will be clarified and defined.”); Myers v.

Morris 810 F.2d 1437, 1458-59 n.16 (8th Cir.), cert. denied,

484 U.S. 828 (1987) (To determine qualified immunity

defense, it is not sufficient to focus merely on “whether

the fourth, fifth, sixth and fourteenth amendment rights

were clearly established,” but the court must focus on the

specific nature of the conduct complained of and state of

the law with respect to identified conduct at time the

official acted. “Qualified immunity would be meaningless

if it could be defeated merely by the recitation of some

well-recognized right and a conclusory allegation that the

defendant infringed it.”).

In contrast, at the time of the transfer in this case, the

law was clearly established that the First Amendment

permits a government employer to take action prior to

the manifestation of disruption of the office and destruc-

tion of working relationships. Connick v. Myers, 461 U.S.

138, 152 (1983). The Fifth Circuit should have taken into

account that the law was clearly established that in

weighing the interest of the employer against that of the

employee, the government employer has an interest in

regulating the speech of its employees that differs signifi-

cantly from the interests it possesses in regulating the

speech of the citizenry in general. Waters v. Churchill, 511

U.S. 661 (1994); Pickering v. Board of Education, 391 U.S.

563, 568 (1968).

B. A Defendant Enjoys Qualified Immunity if a

Reasonable Officer Could Have Believed that

the Lateral Transfers Were Lawful, in Light of

Clearly Established Law and the Information

He Possessed at the Time of the Transfers.

The Fifth Circuit’s denial of qualified immunity in

this case contradicts United States Supreme Court law

and conflicts with the law of other circuits because if the

contours of a plaintiff’s federal rights and the official’s

permissible actions were clearly delineated at the time of

the acts complained of, the defendant enjoys qualified

immunity if his actions were objectively reasonable.

Anderson, 483 U.S. at 641. The objective reasonableness of

an official’s conduct must be measured with reference to

the law as it existed at the time of the conduct in ques-

tion. Harlow, 457 U.S. at 818-19. An official could not

reasonably be expected to anticipate subsequent legal

developments. Id.

Rollins and Hatler transferred Respondents because

of (1) the lack of confidence that existed between Respon-

dents and their chain of command; (2) Respondents’ per-

sonal involvement and possible vendetta in the

investigation of the complaining citizen; (3) the release of

confidential information to individuals outside DPD

regarding ongoing investigations and the names of

informants and the potential effect on both the safety of

the informants and DPD’s ability to maintain such inves-

tigations and informants in the future; and (4) Respon-

dents’ deception in violation of the DPD General Orders

with respect to notifying the chain of command of those

against whom they intended to file suit regarding

Respondents’ claims of wiretapping. See App. Z and AA.

It was objectively reasonable for Rollins and Hatler to

transfer Kirks and Forsyth without fear of violating the

law since the law was not clearly established in 1989 that

lateral transfers were adverse employment actions. In

addition, the law was clearly established that (1) a gov-

ernment employer could take action prior to the mani-

festation of disruption of the office and destruction of

working relationships, Connick, 461 U.S. at 152; and (2)

the government has an interest as an employer in regulat-

ing the speech of its employees that differs significantly

from those it possesses in connection with regulation of

the speech of the citizenry in general. Pickering, 391 U.S.

at 568.

Additionally, the Fifth Circuit’s Forsyth holding is

contrary to case law of other circuits. See Karnes, 62 F.3d

at 491-92; DiMeglio, 45 F.3d at 803; Frank, 1 F.3d at 1328;

Medina, 960 F.2d at 1497-99; Busby, 931 F.2d at 773-74;

Hodorowski, 844 F.2d at 1216; Borucki, 827 F.2d at 838;

Myers, 810 F.2d at 1459 n.16; Kompare v. Stein, 801 F.2d

883, 887 (7th Cir. 1986).

C. If Reasonable Public Officials Could Differ on

the Lawfulness of Petitioners’ Actions, They

Are Entitled to Qualified Immunity.

Petitioners are entitled to qualified immunity if rea-

sonable public officials could differ on the lawfulness of

their actions. Malley, 475 U.S. at 341. If Rollins and Hatler

were mistaken in their judgment whether a lateral trans-

fer was permissible under the circumstances in 1989, they

are entitled to qualified immunity if their decision was

reasonable, although mistaken. Anderson, 483 U.S. at 641.

The qualified immunity standard “gives ample room for

mistaken judgments” by protecting “all but the plainly

incompetent or those who knowingly violate the law.”

Hunter, 502 U.S. at 229; Malley, 475 U.S. at 341, 343. This

accommodation for reasonable error exists because “offi-

cials should not err always on the side of caution” for

fear of a lawsuit. Davis, 468 U.S. at 196. The issue is

whether a reasonable official could have believed his

conduct was lawful, not whether a reasonable official

would have believed his conduct was lawful. In light of

the reasons Respondents were transferred, a reasonable

official could have believed that Rollins and Hatler’s

actions were lawful and thus were entitled to qualified

immunity. See Anderson, 483 U.S. at 641. The Fifth Cir-

cuit’s Forsyth decision is directly contrary to Supreme

Court decisions, and this Court should grant review of

this case.

D. The District Court Erred by Refusing to Grant

Defendants’ Motions for Judgment as a Matter

of Law Regarding Defendants’ Right to the

Defense of Qualified Immunity.

The district court erred by refusing to grant Respon-

dents’ motions for judgment as a matter of law regarding

qualified immunity because a reasonable officer could

have concluded that the transfer of Kirks and Forsyth

was lawful in light of clearly established law and the

information possessed by Rollins and Hatler at the time

of the transfer. The district court’s denial of Petitioners’

motions for judgment as a matter of law regarding quali-

fied immunity is contrary to the protections afforded by

this Court in Harlow, Malley, and Anderson. The district

court’s denial of Petitioners’ motions deprived them of

the protection of law established by this Court, and

caused them to be held individually liable in the amount

of $125,000. Therefore, this Court should review this case

so that it can vacate the Fifth Circuit’s opinion affirming

the District court’s denial of Petitioners’ motions for

judgment as a matter of law and reverse and render

judgment for Petitioners Rollins and Hatler.

E. Alternatively, Triable Issues of Fact Exist

Regarding the Qualified Immunity Defense

That Should Be Presented to the Jury.

The Fifth Circuit’s failure to address the district

court’s refusal to submit the instruction and issue of

qualified immunity to the jury is contradictory to opin-

ions of this Court and of other circuits. This refusal

denies Rollins and Hatler their right to qualified immu-

nity, which is a defense to which they are entitled as a

matter of law because fact issues for a jury existed. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)

(quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391

U.S. 253 (1968)); Karnes, 62 F.3d at 491; Oliveira v. Mayer,

23 F.3d 642, 649 (2d Cir. 1994), cert. denied, 513 U.S. 1076

(1995); Frank, 1 F.3d at 1328; ACLU v. Wicomico County,

Md., 999 F.2d 780, 785 (4th Cir. 1993); White v. Walker, 950

F.2d at 975; Hurlman v. Rice, 927 F.2d 74, 78 (2d Cir. 1991);

Thorsted v. Kelley, 858 F.2d 571, 575 (9th Cir. 1988).

Respondents contend that the failure to submit the triable

issues of fact to the jury resulted in manifest injustice to

Rollins and Hatler.

The factual disputes were whether a job in the intel-

ligence unit is more prestigious and whether a reasonable

police officer would have known at the time of the trans-

fer that the lateral transfers constitute an adverse

employment action under the First Amendment. The

Fifth Circuit should have held that it was reversible error

not to submit the factual issues to the jury.

Ill. A SPEAKER’S MOTIVATION OR INTEREST IN

“SPEAKING OUT” IS A DETERMINATIVE FAC-

TOR IN DECIDING WHETHER THE SPEECH

ADDRESSES A MATTER OF PUBLIC CONCERN.

Under this Court’s existing precedent, to determine

the important federal question whether speech addresses

a matter of public concern, a court must decide a

speaker’s motivation or interest in “speaking out.” See

Connick, 461 U.S. at 147. The Fifth Circuit ruled that

Respondents’ speech in complaining about their super-

visors addressed a matter of public concern by cursorily

determining that their primary motivation was not per-

sonal. This ruling is in direct conflict with existing

Supreme Court precedent. Respondents’ personal

employment dispute centered around their desire to

restore their reputation pursuant to the wiretap allega-

tions by which they believed they had been damaged;

their belief that there was an insidious conspiracy against

them; and their lawsuit for damages against individuals,

seeking millions >f dollars. See App. X and Y. A public

employee’s speech is not protected when the employee

speaks as a citizen on a matter of general concern that is

tied to a personal employment dispute. Connick, 461 U.S.

at 147, 148 n.8; Terrell v. Univ. of Tex. Sys. Police, 792 F.2d

1360, 1362 (5th Cir. 1986), cert. denied, 479 U.S. 1064

(1987). As a matter of law the Fifth Circuit should have

ruled for Petitioners and held that the “speaking out”

was not a matter of public concern because Respondents’

statements were necessarily tied to a personal employ-

ment dispute.

This Court also should address this issue because

there is a conflict among the circuits whether a speaker’s

motivation or interest in speaking out is a determinative

factor in whether the speech addresses a matter of public

concern, and because the Fifth Circuit’s ruling is inconsis-

tent with its own precedent. Several circuits consider the

speaker’s motivation when determining whether speech

addresses a matter of public concern: Gardetto v. Mason,

100 F.3d 803, 812 (10th Cir. 1996); Johnson v. Clifton, 74

F.3d 1087, 1092 (11th Cir.), cert. denied, __ U.S. __, 117

ee ee ae ee ee

S.Ct. 51, 136 L.Ed.2d 15 (1996) (Speech is not protected by

the First Amendment if motivated by personal concerns

instead of public concerns.); DiMeglio, 45 F.3d at 805;

Smith v. Fruin, 28 F.3d 646, 652 (7th Cir. 1994), cert. denied,

513 U.S. 1083 (1995); Blum v. Schlegel, 18 F.3d 1005, 1012

(2d Cir. 1994) (The fact that employee’s speech touches on

matters of public concern will not render that speech

protected where the employee’s motive for the speech is

private and personal.); Gillum v. City of Kerrville, 3 F.3d

117, 121 (5th Cir. 1993), cert. denied, 510 U.S. 1072 (1994);

Bausworth v. Hazelwood School Dist., 986 F.2d 1197, 1198

(8th Cir. 1993) (The determination of whether speech

addresses a matter of public concern focuses on the

employee’s role in conveying the speech, including the

employee’s motivation in speaking, rather than the pub-

lic’s interest in the speech’s topic.); Fiorillo v. U.S. Dep't of

Justice, Bureau of Prisons, 795 F.2d 1544, 1550 (Fed. Cir.

1986) (For speech to address a matter of public concern,

the speaker’s primary motivation must be a desire to

inform the public on matters of public concern and not

public vindictiveness.).

Other circuits determine whether the speech

addresses a matter of public concern, regardless of the

speaker’s motivation. Johnson v. Multnomah County, 48

F.3d 420, 425 (9th Cir. 1995), cert. denied, __ U.S. __, 115

S.Ct. 2616, 132 L.Ed.2d 858 (1995); Davis v. Ector County,

Texas, 40 F.3d 777, 782 (5th Cir. 1994); Tao v. Freeh, 27 F.3d

635, 639 (D.C. Cir. 1994); O’Connor v. Steeves, 994 F.2d 905,

914 (1st Cir.), cert. denied, 510 U.S. 1024 (1993); Zamboni v.

Stamler, 847 F.2d 73, 78 (3rd Cir. 1988), cert. denied, 488

U.S. 899 (1988); McMurphy v. City of Flushing, 802 F.2d

191, 197 (6th Cir. 1986). This Court should grant certiorari

to review and reverse the Fifth Circuit’s opinion, which at

best addressed Respondents’ motivation in a cursory

manner, and which is contrary to this Court’s rulings and

conflicts with rulings of other circuits.

IV. THE PICKERING BALANCE DOES NOT

REQUIRE A SHOWING OF ACTUAL DISRUP-

TION IN THE WORKPLACE, BUT ONLY A

SHOWING OF A POTENTIAL DISRUPTION OF,

OR LIKELY INTERFERENCE WITH, THE EFFI-

CIENCY OF THE WORKPLACE BEFORE THE

EMPLOYER MAY TAKE EMPLOYMENT

ACTION.

The Fifth Circuit’s opinion in this case is in direct

conflict with several opinions of this Court because a

showing of actual disruption of the workplace is not

necessary prior to taking employment action. This Court

has consistently held that reasonable predictions of dis-

ruption are sufficient to justify restrictions on employee

speech. Waters v. Churchill, 511 U.S. 661, 128 L.Ed.2d 686,

698-99 (1994) (Few cases involve tangible, present inter-

ference with the agency’s operation. “The danger in them

is mostly speculative. . . . [S]ubstantial weight is given to

government employers’ reasonable predictions of disrup-

tion, even when the speech involved is on a matter of

public concern. . . . [CJonstitutional review of govern-

ment employment decisions must rest on different princi-

ples than review of speech restraints imposed by the

government as sovereign. ... When someone who is paid

a salary so that she will contribute to an agency’s effec-

tive operation begins to do or say things that detract from

the agency’s effective operation, the government

employer must have some power to restrain her.”); Con-

nick, 461 U.S. at 152 (It is not necessary “for an employer

to allow events to unfold to the extent that the disruption

of the office and the destruction of working relationships

is manifest before taking action.”); and Board of County

Commissioners v. Umbehr, 518 U.S. __, 135 L.Ed.2d 843,

852 (1996) and United States v. National Treasury Employees

Union, 513 U.S. __, 130 L.Ed.2d 964, 985 n.21 (1995)

(Government predictions of harm used to justify restric-

tions of employee speech are given great deference.). The

Fifth Circuit’s ruling that the significance of Respondents’

speech outweighed the department’s efficiency concerns?

because no defense witness testified that Respondents’

speech “undermined the [department's] operations,” nec-

essarily holds that the department’s operations must be

undermined before taking action against the employee,

and this Court has never required such proof of actual

disruption in the workplace. This is particularly true in

paramilitary organizations. See Kelley v. Johnson, 425 U.S.

238 (1976) (A police department may have a legitimate

interest in promoting esprit de corps.); Williams v. Board of

Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S.

2 That the need for trusted relationships between superiors

and subordinates is paramount in the often covert, dangerous,

and sensitive field of intelligence and undercover operations is

undisputed. Respondents’ chain of command knew that they

lost trust and confidence in them, as evidenced by Respondents’

preparing an “indictment” against their superiors and

clandestine taping of their conversations with their superiors,

demonstrating that a destructive breakdown in the working

relationship had occurred. See App. Z and AA.

926 (1981) (The court found that the “threat of disrup- |

tion” was great and that discipline is important to a

quasi-military organization.).

V. A MUNICIPALITY CANNOT BE HELD LIABLE

UNDER 42 U.S.C. §1983 IF THE DISTRICT COURT

HELD THAT NO INDIVIDUAL DEFENDANT WAS

A POLICYMAKER, AND RESPONDENTS FAILED

TO ESTABLISH THAT THE CITY HAD A POLICY

OR CUSTOM OF RETALIATION AGAINST

EMPLOYEES WHO REPORT ALLEGED VIOLA-

TIONS OF LAW.

The Fifth Circuit’s failure to address the district

court’s finding of liability of the City, based in part upon

42 U.S.C. §1983, is contradictory to this Court’s rulings

and raises an important federal question. As a matter of

law, the evidence was insufficient to hold the City liable

under §1983. A municipality can be sued and subjected to

monetary damages under §1983 only if its official policy

or custom causes a person to be deprived of a federally

protected right. Monell v. New York City Dep't of Social

Servs., 436 U.S. 658, 694 (1978).

Respondents established neither a policy nor a cus-

tom (long-standing, widespread practice) of retaliation by

the City. The action of an individual official may be a

basis for holding a municipality liable only if the official

has policymaking authority. Pembaur v. City of Cincinnati,

475 U.S. 469, 481-482 (1986); Monell, 436 U.S. at 694.

Policymaking authority means final authority to establish

municipal policy with respect to the action ordered. Pem-

baur, 475 U.S. at 481-482. A city employee is not a policy-

maker unless the city, through its lawmakers, has

a eeiameananiliiatiliaiiaaiiiil

delegated exclusive policymaking authority to that

employee and cannot review the action taken by the

employee. Jett v. Dallas Indep. School Dist., 491 U.S. 701,

737 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988).

The district court correctly held that Vines, Rollins,

and Hatler were not policymakers. The uncontroverted

evidence at trial established that the City has an officially

adopted policy forbidding retaliation against employees

for seeking redress against a superior. No evidence was

presented by Respondents that the City had a policy or

custom of retaliation. Thus, the issue should never have

been submitted to the jury. The district court’s failure to

grant Petitioners’ motions for judgment as a matter of law

and submission of this issue to the jury, and the Fifth

Circuit’s failure to address §1983 resulted in the improper

finding of liability against the City. This Court should

review this case. Finally, this Court should review this

case because the Fifth Circuit’s failure to review the

City’s liability under §1983, coupled with its improper

finding of liability of the City under the Texas Whis-

tleblower Act, results in a gross miscarriage of justice. See

Section VII, infra.

VI. THE ISSUE OF PUNITIVE DAMAGES UNDER

BOTH 42 U.S.C. §1983 AND THE TEXAS WHIS-

TLEBLOWER ACT SHOULD NOT HAVE BEEN

SUBMITTED TO THE JURY ABSENT A SHOW-

ING OF MALICIOUS INTENT OR RECKLESS

DISREGARD, AND, ALTERNATIVELY, THE

AWARD OF PUNITIVE DAMAGES WAS

GROSSLY EXCESSIVE AND UNREASONABLE.

The Fifth Circuit’s opinion in Forsyth is in direct

conflict with this Court’s opinions regarding the standard

for awarding punitive damages under 42 U.S.C. §1983.

No basis for an award of punitive damages exists where

the evidence establishes that a defendant did not act with

a malicious intent to deprive a plaintiff of his rights or do

him injury and the inclusion of this issue resulted in an

improper verdict against defendants. Carey v. Piphus, 435

U.S. 247 (1978). A jury may be permitted to assess puni-

tive damages in an action under §1983 when the defen-

dants’ conduct is motivated by evil motive or intent, or

when it involves reckless or callous indifference to the

federally protected rights of others. Smith v. Wade, 461

U.S. 30, 56 (1983); City of Newport v. Fact Concerts, Inc. 453

U.S. 247, 266-67 (1981). Punitive damages are available

only on a showing of the requisite intent. Memphis Com-

munity School Dist. v. Stachura, 477 U.S. 299, 306 n.9

(1986).

The jury question for punitive damages was based on

whether the jury found liability under Jury Question

Numbers 2 and 3, not on whether the jury found malice

or reckless or callous disregard of Respondents’ rights

by Petitioners. There was no showing of malicious intent

or reckless disregard of Respondents’ rights because the

transfer was not an adverse employment action, and

Rollins and Hatler did not violate clearly established law

of which a reasonable person would have known. Hatler

and Rollins, and thereby the City, reasonably transferred

Respondents because of potential disruption and extreme

tension in the workplace and Respondents’ lack of confi-

dence in their chain of command. The jury’s finding that

the wiretap lawsuit against Rollins and other officers was

not a factor in the decision to transfer Respondents dem-

onstrates that no ill will or callous indifference existed on

behalf of Rollins and Hatler. A scintilla of evidence to

submit this issue to the jury is insufficient to present a

question to the jury. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986). Alternatively, the great weight of the |

evidence established that the verdict as to punitive dam-

ages was grossly excessive and unreasonable. Glasscock v.

Armstrong Cork Co., 946 F.2d 1085 (Sth Cir. 1991), cert.

denied, 503 U.S. 1011 (1992).

Punitive damages were also improperly awarded

against the City under the Texas Whistleblower Act (“the

Act”), Tex. Gov’t Code Ann. §554.002 (Vernon’s 1993),

because there was no showing of malicious intent or

reckless disregard of Respondents’ rights. Punitive dam-

ages may be awarded only if Petitioners acted on the

“basis of an aggravated mental State, such as intent,

recklessness, or gross negligence, that involved either

deliberate and purposeful injury to [Respondents] or

actual subjective awareness that serious injury is highly

probable.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10,

19 (Tex. 1994). The punitive damages assessed were so

excessive that the verdict appears to be based on passion

or prejudice rather than a reasoned finding based on the

evidence. A new trial is the proper remedy. Auster Oil &

Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir. 1986), cert. denied,

488 U.S. 848 (1988). Since there is no evidence supporting

a finding of malice on behalf of any Petitioner in this

case, no evidence exists supporting an award of punitive

damages against the City under the Act. City of Ingleside

v. Kneuper, 768 S.W.2d 451, 457 (Tex.App.-Austin 1989,

writ denied). This Court should grant certiorari to review

and vacate the Fifth Circuit’s opinion and render judg-

ment for Petitioners.

VII. THE TEXAS WHISTLEBLOWER ACT DID NOT

PROVIDE FOR LIABILITY IN 1989 IF THE

ALLEGED DISCRIMINATION WAS BASED ON

A LATERAL TRANSFER, FROM THE DAY SHIFT

IN THE INTELLIGENCE DIVISION TO THE

NIGHT SHIFT IN THE PATROL DIVISION

WITH GENUINE RESPONSIBILITIES AND

DUTIES IN THE NEW POSITION AND WITH

NO REDUCTION IN SALARY, RANK, GRADE,

BENEFITS, OR LOSS OF PROMOTIONAL

OPPORTUNITIES, AND IF THE REPORT OF

THE ALLEGED VIOLATION OF LAW WAS NOT

THE REASON FOR THE LATERAL TRANSFER.

This Court should grant certiorari to decide this issue

because the Fifth Circuit found the City liable under the

Texas Whistleblower Act but refused to decide the impor-

tant federal question of the City’s liability for the same

acts under 42 U.S.C. §1983, and Petitioners have no other

avenue of appealing the manifestly unjust ruling of the

Fifth Circuit. This Court should also grant certiorari

because the Fifth Circuit’s opinion regarding the City’s

liability under the Act is contrary to well established law

by the highest court of the State of Texas. This Court can

review the Fifth Circuit’s opinion regarding Respondents’

claims under the Act, since the district court assumed

supplemental jurisdiction over these claims which arose

out of a common nucleus of operative facts, and the Fifth

Circuit issued judgment regarding these claims. See

United Mine Workers v. Gibbs, 383 U.S. 715 (1966); 28

U.S.C. §§1331, 1441, 1254.

To recover under the Act in 1989, a plaintiff must

show that he was suspended, terminated, or otherwise

discriminated against for reporting a violation of law.

Tex. Gov’t Code Ann. §554.002 (West 1994) (amended

1995). As a matter of law, Respondents’ transfer was not

an adverse employment action. Se¢ Section I, supra,

authorities cited regarding adverse employment action.

The Act provides no legally sufficient basis in this case

that Respondents were discriminated against by being

transferred.

The Fifth Circuit supported its interpretation that the

Act included transfers by stating that “the Texas legisla-

ture has since amended [the Act] to clarify that it covers

transfers,” Forsyth, 91 F.3d at 776; however, the new Act

specifically changed the definition of adverse employ-

ment action to include transfers. Tex. Gov’t Code

§§554.001-002 (West Supp. 1997). The court’s holding that

an amendment to the Act, effective June 15, 1995, applied

to a transfer that occurred in 1989 is directly contrary to

the amended Act. The amended Act adds “transfers” and

substitutes “adverse employment action” for “discrimi-

nates against” after the transfers in this case occurred.

The Act is not retroactive and specifically states, “[t]he

changes in law made by this Act apply only to a suspen-

sion or termination of employment of a public employee

or to other adverse personnel action taken against a pub-

lic employee on or after the effective date of this Act.”

Tex. Gov’t Code §§554.001 historical note (West Supp.

1997) [Act of June 15, 1995, 74th Leg., ch. 721, §1].

Moreover, the Fifth Circuit’s suggestion that its inter-

pretation of the Act as it applied to events in 1989 is

somehow validated by an amendment that was enacted

in 1995 is plainly contrary to the well-established rule of

statutory construction that “when the legisiaiure amends

a law, it is presumed that it intends to change the law.”

American Surety Co. of New York v. Axtell Co., 120 Tex. 166,

36 S.W.2d 715 (Tex. 1930). The legislature’s amendment of

the law to cover transfers in 1995 necessarily establishes

that the law did not cover transfers in 1989. See Tex. Govt.

Code §554.001(3) (West Supp. 1997). To hold otherwise

requires a quantum leap in logic.

Finally, as a matter of law, Respondents should not

have recovered under the Act because they did not estab-

lish that the report made to DPD (an appropriate law

enforcement authority) was the reason for the transfer.

Respondents’ testimony established that their retaliation

claim was based on a report to the press and the lawsuit,

see App. BB, CC. The jury found that the lawsuit was not

a factor in the transfer. See App. W. The Fifth Circuit

necessarily established that Respondents were trans-

ferred two days after the news article about their lawsuit,

and that Forsyth and Kirks “contend” that their com-

plaints to DPD about the alleged wiretaps were ignored.

Forsyth, 91 F.3d at 772. The Fifth Circuit did not address

the City’s liability under §1983, and only found liability

under the Act based on the report to the media. While a

finding of liability under §1983 could be based on a

report to the press, if all other §1983 elements are met,

“[t]he media is not an appropriate ‘law enforcement

authority’ under the Whistleblower Act.” See City of Beau-

mont v. Bouillion, 896 S.W.2d 143, 145 (Tex. 1995). Since

Respondents did not show the requisite causal connec-

tion, a necessary element of their whistleblower claim is

missing, and no liability was established; thus, the award

of $750,000 in punitive damages against the City under

the Act is without legal basis.

The Fifth Circuit did not cite a single Texas case for

the proposition that lateral transfers would be considered

to be either a demotion or discrimination by the Texas

courts. The cases cited by the Fifth Circuit deal with

transfers, but do not address this vital issue. The Fifth

Circuit held (based on its authority to decide federal law

under §1983) that “the evidence established that Forsyth

and Kirk’s transfers constituted demotions.” Forsyth, 91

F.3d at 776. The Fifth Circuit then concluded that a demo-

tion was discrimination under the Whistleblower Act,

although none of the cited cases addresses that issue.

The Fifth Circuit created a basis for recovery which

Respondents did not have under federal or state law in

1989, and this Court should review the case.

CONCLUSION

If the Fifth Circuit’s ruling is not reviewed by this

Court, important federal questions and conflicts among

the circuits will not be addressed, and failure to review

the rulings in this case will severely impact and unneces-

sarily burden financial resources of all local governments

within the Fifth Circuit because the Fifth Circuit has

created a right of recovery not previously recognized by

this Court. For the reasons stated herein, Petitioners

respectfully request that this Court grant their Petition

for Writ of Certiorari, to review and reverse the opinion

of the Fifth Circuit and render judgment in favor of

Petitioners in all respects and on all issues, and, alter-

natively, review and remand this case for a new trial for

the reasons stated herein, and for such other and further

relief, at law and in equity, to which Petitioners show

themselves justly entitled.

Respectfully submitted,

CITY ATTORNEY OF THE CITY OF DALLAS

Sam A. LINDSAY

City Attorney

Texas State Bar No. 12368900

Janice S. Moss

Assistant City Attorney

Texas State Bar No. 14586050

LizsetH IsLas

Assistant City Attorney

Texas State Bar No. 00787750

7CN Dallas City Hall

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510 — Telephone

(214) 670-3515 — Telecopier

Attorneys for Petitioners

App. i

INDEX TO APPENDICES

The Appendices are listed below in accordance with the

categories and order set forth in U.S. Supreme Court Rule

14(1)(i):

I. OPINIONS, ORDERS, FINDINGS OF FACT, AND

CONCLUSIONS OF LAW, WHETHER WRITTEN OR

ORALLY GIVEN AND TRANSCRIBED, ENTERED IN

CONJUNCTION WITH THE JUDGMENT SOUGHT

TO BE REVIEWED

Appendix A Opinion of the United States Court

of Appeals for the Fifth Circuit

rendered August 16, 1996, and

cited as Forsyth v. City of Dallas, 91

F.3d 769 (5th Cir. 1996) ........ App. 1

Appendix B Amended Judgment of the United

States Court of Appeals for the

Fifth Circuit filed and issued as

mandate on March 31, 1997,

affirming the judgment of the dis-

trict court, ordering Defendants to

pay Plaintiffs’ costs, and ordering

the issue of attorneys’ fees

remanded to district court ..... App. 15

Appendix C Order of the United States Court

of Appeals for the Fifth Circuit

filed and issued as mandate on

March 31, 1997, denying Appel-

lants’ Motions for Rehearing and

Suggestion for Rehearing En Banc

and ordering that its order entered

November 15, 1996 remains in

er eee App. 17

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

App. ii

Order of the United States Court

of Appeals for the Fifth Circuit

filed November 15, 1996, granting

Appellees’ Supplemental Motion

to Amend August 16, 1996 judg-

ment to extent necessary to

remand issue of attorneys’ fees

and granting Appellees’ alterna-

tive request to remand issue of

attorneys’ fees to district court for

GeterMRMAOR. «o's. oo one Secs App.

Amended Final Judgment of the

United States District Court for the

Northern District of Texas, Dallas

Division, entered April 3, 1995... App.

Order of the United States District

Court for the Northern District of

Texas, Dallas Division, filed Janu-

ary 25, 1995, Denying Defendants’

Motions for Judgment as a Matter

OF EUR sons vangncte van eeese ce App.

Oral ruling of the United States

District Court for the Northern

District of Texas, Dallas Division,

issued on or about January 13-25,

1995, denying Defendants’ Motion

for Judgment as a Matter of Law

presented at close of Plaintiffs’

case-in-chief, Record Vol. V, p.

Re wie cha a ca Os ee eee App.

Oral ruling of the United States Dis-

trict Court for the Northern District

of Texas, Dallas Division, issued on

or about January 13-25, 1995, deny-

ing Defendants’ Motion for Judg-

ment as a Matter of Law presented

at close of all of the evidence, Record

VER VE OO GE... we ec eeess App.

App. iii

Appendix I Oral ruling of the United States

District Court for the Northern

District of Texas, Dallas Division,

issued on or about January 13-25,

1995, overruling Defendants’

Objections to the Jury Instructions

and Charge, Record Vol. VII, pp.

PE Ns wd bey bbs s Paee ss Odd vcacan App. 38

II. OTHER OPINIONS, ORDERS, FINDINGS OF FACT,

AND CONCLUSIONS OF LAW ENTERED IN THE

CASE BY COURTS, AND, IF REFERENCE THERETO

IS NECESSARY TO ASCERTAIN THE GROUNDS OF

THE JUDGMENT, OF THOSE IN COMPANION

CASES

Appendix J Order of United States Court of

Appeals for the Fifth Circuit filed

April 21, 1997 denying Appellants’

second motion to recall mandate

and denying Appellants’ first

motion to stay the issuance of

mandate pending Appellants’ peti-

tion for writ of certiorari to the

United States Supreme Court...App. 44

Appendix K Mandate issued on March 6, 1997,

on the Judgment of the United

States Court of Appeals for the

Fifth Circuit filed August 16, 1996,

affirming the judgment of the dis-

trict court and ordering Defen-

dants to pay Plaintiffs’ costs...App. 46

Appendix L Judgment of the United States

Court of Appeals for the Fifth Cir-

cuit filed August 16, 1996, affirm-

ing the judgment of the district

court and ordering Defendants to

pay Plaintiffs’ costs ............ App. 48

Appendix M

Appendix N

Appendix O

Appendix P

Appendix Q

App. iv

Order of the United States Court

of Appeals for the Fifth Circuit

filed March 1, 1996, denying

Appellees/Cross-Appellants’

Motion to strike certain portions of

Appellants/Cross-Appellees’

| Pee ee err App.

Order of the United States District

Court for the Northern District of

Texas, Dallas Division, entered

April 3, 1995, Declaring Moot

Renewed Motion for Judgment as

a Matter of Law and Denying in

Part Amended Renewed Motion

for Judgment as a Matter of Law

and Denying in Part Alternative

Motion for New Trial.......... App.

Order of the United States District

Court for the Northern District of

Texas, Dallas Division, filed March

31, 1995, Granting in Part Plain-

tiffs’ Motion to Amend Judgment

and Granting in Part Plaintiffs’

Motion for Attorneys’ Fees and

CODEN acc Eee fan we es ae ASS App.

Final Judgment of the United

States District Court for the North-

ern District of Texas, Dallas Divi-

sion, filed January 31, 1995 ....App.

Opinion of the United States Court

of Appeals for the Fifth Circuit in

a related case (the wiretap lawsuit)

rendered April 20, 1994, and cited

as Forsyth v. Barr, 19 F.3d 1527 (5th

Chi WR re vitae cia: App.

Ill. ORDER ON REHEARING

Appendix R

App. v

Order of the United States Court

of Appeals for the Fifth Circuit

filed and issued as mandate on

March 31, 1997, denying Appel-

lants’ Motions for Rehearing and

Suggestion for Rehearing En

NE iit Peter Sahai soe os App. 113

IV. JUDGMENT SOUGHT TO BE REVIEWED (DATE OF

ENTRY DIFFERENT FROM DATE OF OPINION)

Appendix S

Amended Judgment of the United

States Court of Appeals for the

Fifth Circuit filed and issued as

mandate on March 31, 1997,

affirming the judgment of the dis-

trict court, ordering Defendants to

pay Plaintiffs’ costs, and ordering

the issue of attorneys’ fees

remanded to district court ..... App. 114

V. CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THE CASE

Appendix T

U.S. Const. amend. I........... App. 116

U.S. Const. amend. XIV, § 1... -App. 116

42 U.S.C. § 1983 (1994)......... App. 116

42 U.S.C. § 1988 (1994)......... App. 117

Tex. Gov’t Code Ann. § 554.002,

Texas Whistleblower Act: Retalia-

tion Prohibited for Reporting a

Violation of Law (West 1994)

| Le eee nS App. 118

App. vi

Tex. Gov’t Code Ann. § 554.002,

Texas Whistleblower Act: Retalia-

tion Prohibited for Reporting a

Violation of Law (West Supp. 1997)

(amending Tex. Gov’t Code Ann.

§ 554.002 (West 1994)).......... App.

Tex. Gov’t Code Ann. § 554.001,

Texas Whistleblower Act: Defini-

tions (West Supp. 1997) (amending

Tex. Gov’t Code Ann. § 554.001

(VISES BPO oo cv iiceetdesseecs App.

VI.. OTHER MATERIAL

Appendix U

Appendix V

Appendix W

Appendix X

Appendix Y

Defendants City of Dallas, Texas,

Willard Rollins and Richard

Hatler’s Notice of Appeal to the

United States Court of Appeals for

the Fifth Circuit filed April 17,

ROO Kis seas Hedy ee hee tee pa een we App.

Defendants’ Proposed Jury

Instruction and Issue regarding

whether Defendants Hatler and

Rollins are entitled to the defense

of qualified immunity.......... App.

District Court’s Charge to the Jury

filed January 18, 1995.......... App.

Excerpt of Plaintiff Forsyth’s trial

testimony regarding her transfer,

Record Vol. II, pp. 74, 77-81, 89-

Os sire chee ete aes heen eo App.

Excerpt of Plaintiff Kirks’ trial tes-

timony regarding his transfer,

Record Vol. III, pp. 43-44, 46-47,

NE Wh web ie ces A OOM a Oe as ve eu App.

118

119

120

122

125

157

166

Appendix Z

Appendix AA

Appendix BB

Appendix CC

App. vii

Excerpt of Defendant Hatler’s trial

testimony regarding the transfers,

Record Vol. IV, pp. 85-86, 88-89,

RRR IE iit ut aang App. 173

Excerpt of Defendant Rollins’ trial

testimony regarding the transfers,

Record Vol. V, pp. 124-127 ..... App. 189

Excerpt of Plaintiff Forsyth’s trial

testimony regarding news article

and lawsuit, Record Vol. I, pp.

170-171; Vol. IL, pp. 86-88 ...... App. 193

Excerpt of Plaintiff Kirks’ trial tes-

timony regarding the transfers and

news article, Record Vol. II, pp.

170-174; Vol. Ill, pp. 16-17 ..... App. 199

APPENDIX A

App. 1

91 F.3d 764 (5th Cir. 1996)

Jan FORSYTH, Richard Kirks,

Plaintiffs-Appellees Cross-Appellants,

CITY OF DALLAS, TX, et al., Defendants,

City of Dallas, TX, Willard Rollins, Richard Hatler,

Defendant-Appellant Cross-Appellee.

No. 95-10360.

United States Court of Appeals,

Fifth Circuit.

Aug. 16, 1996.

Police officers, who were transferred from intel-

ligence unit to night uniformed patrol after making alle-

gations of illegal wiretapping within police department,

sued city and individual defendants for retaliation in

violation of First Amendment, § 1983, and Texas Whis-

tleblower Act. The United States District Court for the

Northern District of Texas, Robert B. Maloney, J., entered

judgment against defendants for actual and exemplary

damages and attorney fees and costs, but granted judg-

ment as matter of law to defendants on one officer’s

claim for lost wages. The Court of Appeals, Edith H.

Jones, Circuit Judge, held that: (1) officers engaged in

conduct protected by First Amendment; (2) transfers con-

stituted demotions which deprived officers of cognizable

property right, even without reducing officers’ pay; (3)

evidence supported awards of $100,000 and $75,000,

respectively, in emotional anguish damages and $125,000

in exemplary damages against supervisors who ordered

transfers; (4) supervisors were not entitled to qualified

immunity; (5) city was liable for officers’ transfers under

Texas Whistleblower Act; (6) $750,000 exemplary damage

App. 2

award against city under Whistleblower Act was permis-

sible; (7) officer’s speculative testimony did not support

lost wages claim; and (8) attorney fee awards were not

unreasonable.

Affirmed.

See also, 19 F.3d 1527.

Douglas R. Larson, Russell Howard Daniels, Law

Office of Douglas R. Larson, Mesquite, TX, for Forsyth

and Kirks.

Sam A. Lindsay, City Attorney, Fritz Joseph Aldrine,

II, Associate City Attorney, Office of the City Attorney for

the City of Dallas, Dallas, TX, Janice Smith Moss, Assis-

tant Attorney General, City Attorney’s Office, City of

Dallas, Dallas, TX, for City of Dallas, TX, Rollins and

Hatler.

Bill Boyd,- McKinney, TX, for Vines.

Appeals from the United States District Court for the

Northern District of Texas.

Before POLITZ, Chief Judge, and JONES and BARKS-

DALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Jan Forsyth and Richard Kirks were veteran under-

cover detectives in the Intelligence Unit of the Dallas

Police Department (“DPD”). They alleged, both to supe-

rior officers in the DPD and later to the media, that

several high-ranking DPD officers had participated in

App. 3

illegal wiretapping that interfered with a sensitive under-

cover investigation. After the Dallas Morning News ran

two articles about their allegations, Forsyth and Kirks

were transferred from the Intelligence Unit to night uni-

formed patrol. Forsyth and Kirks sued the City of Dallas

(“the City”), and Officers Willard Rollins, Richard Hatler,

and Mack Vines for retaliating against them in violation

of 42 U.S.C. § 1983 and the Texas Whistleblower Act,

Tex.Civ.Stat.ANN. art. 6252-16a (1992), because they had

exercised their First Amendment rights to free speech.

After a jury trial, the district court entered judgment

against the City, Rollins, and Hatler, assessing a total of

$175,000 in actual damages, $1 million in exemplary dam-

ages, and $153,470 in attorneys’ fees and costs. The dis-

trict court granted judgment as a matter of law to the

defendants on Kirks’s claim for lost wages. Both sides

now appeal. We affirm the district court’s judgment.

I. BACKGROUND

At the time of this suit, Forsyth and Kirks were

conducting an undercover drug “sting” in conjunction

with the Federal Bureau of Investigation and the Drug

Enforcement Agency. Through a complex series of events

related to the sting, a Dallas lawyer (Barr) and a politi-

cally influential Dallas businessman (Grogan) decided to

level a complaint against Forsyth and Kirks with the

DPD. The Internal Affairs (“IA”) division of the DPD

investigated the complaint and exonerated Forsyth and

Kirks. A copy of the IA report was given to Forsyth.

From this report, Forsyth and Kirks formed a belief

that several high-ranking officers within the DPD had

App. 4

engaged in illegal wiretapping. They complained about

the alleged wiretaps to several superior officers in the

DPD. Forsyth and Kirks contend their complaints were

ignored.

Subsequently, Forsyth and Kirks turned the IA report

over to their attorneys and instructed the attorneys to “go

public” with their allegations that several high-ranking

DPD officers had engaged in illegal wiretaps. On Febru-

ary 5, 1989, the Dallas Morning News ran a front page

article about Forsyth’s and Kirks’s allegations. Two days

later, Forsyth and Kirks were called to a meeting with

their supervisors, Chief Rollins and Assistant Chief

Hatler. Forsyth and Kirks testified that Rollins and Hatier

told them to “stop the publicity” and threatened to trans-

fer them from the Intelligence Unit if any further publi-

city ensued.

On February 13th, Forsyth and Kirks sued the City,

Rollins, and several other officers over the illegal wire-

taps (“the wiretapping suit”).}

On February 14th, the Dallas Morning News ran an

article about the wiretapping suit. The next day, Forsyth

and Kirks were transferred from the Intelligence Unit to

night uniformed patrol. Rollins and Hatler requested the

transfer, and Vines approved it. Although Forsyth’s and

Kirks’s pay was not reduced because of the transfers,

they considered their new positions to be demotions.

1 The wiretapping suit was dismissed by the district court

and the Fifth Circuit affirmed, Forsyth v. Barr, 19 F.3d 1527 (5th

Cir.), cert. denied, __ U.S. __, 115 S.Ct. 195, 130 L.Ed.2d 127

(1994).

App. 5

They had each begun their careers, thirteen and nineteen

years previously, in night uniformed patrol.

Forsyth and Kirks filed the instant suit alleging that

the City and Rollins, Hatler, and Vines had retaliated

against them for complaining to superior DPD officers

about the alleged wiretapping, for publicizing their wire-

tapping allegations, and for filing the wiretapping suit, in

violation of the First Amendment, § 1983, and the Whis-

tleblower Act, supra. At trial, the jury found that (1) the

officers’ transfers constituted adverse employment

actions; (2) Forsyth and Kirks were transferred because

they had complained to superior officers about the

alleged wiretaps and because they had publicized their

allegations to the press; (3) Forsyth and Kirks were not

transferred because they had filed the wiretapping suit;

(4) Forsyth and Kirks had made the internal DPD wire-

tapping complaints in good faith; (5) the City had a de

facto official policy of permitting the DPD to retaliate

against whistleblowers; and (6) Vines was not liable for

retaliating against Forsyth and Kirks.

As damages, the jury found that (1) Kirks had suf-

fered $50,000 in past mental anguish, $25,000 in future

mental anguish, $80,000 in past lost wages, and $675,000

in future lost wages; (2) Forsyth had suffered $75,000 in

past mental anguish and $25,000 in future mental

anguish; (3) $125,000 in exemplary damages each should

be assessed against Rollins and Hatler under § 1983; and

(4) $125,000 in exemplary damages was owed by the City

under § 1983 and $750,000 under the Whistleblower Act.

The district court eliminated the jury’s award for

Kirks’s lost wages and the § 1983 exemplary damages

App. 6

against the City. The court entered judgment that (a)

Rollins, Hatler, and the City were jointly and severally

liable under § 1983 for Forsyth’s and Kirks’s mental

anguish, or alternatively, the City was liable under the

Whistleblower Act for those damages; (b) Rollins and

Hatler were each liable under § 1983 for $125,000 in

exemplary damages; and (c) the City was liable under the

Whistleblower Act for $750,000 in exemplary damages.

The district court also awarded the officers attorneys’ fees

and costs.

Il. DISCUSSION

A. Rollins and Hatler

The City, Rollins, and Hatler contend the district

court erred in determining that the City and the officers

had violated § 1983 by retaliating against Forsyth and

Kirks because they had exercised their First Amendment

rights to free speech. We will not address the troublesome

question of the City’s § 1983 liability because, as dis-

cussed later, the City is alternatively liable under the

Whistleblower Act. Rollins’s and Hatler’s § 1983 conten-

tions are unconvincing.

Rollins and Hatler first assert that Forsyth and Kirks

did not engage in conduct protected by the First Amend-

ment. Contrary to the defendants’ arguments, Forsyth

and Kirks offered unrebutted testimony that they

instructed their lawyers to publicize the wiretapping alle-

gations. Further, it does not appear that Forsyth and

Kirks were primarily motivated by personal and not pub-

lic concerns in publicizing their allegations. At the time

they “spoke out,” Forsyth and Kirks had been exonerated

App. 7

by the IA report. Although the plaintiffs’ disputes with

DPD may have influenced their decision to speak out, the

Dallas Morning News articles about their allegations dis-

cussed matters of public concern. The public would want

to know of charges that influential citizens were taking

advantage of their relationships with the police, even to

the extent of conducting their own wiretaps. Moreover,

balancing the significance of the speech against the

employer’s efficiency concerns, as Connick? requires, does

not turn out favorably for Rollins and Hatler. No defense

witness testified that Forsyth’s and Kirks’s publication of

the wiretapping allegations undermined the DPD’s oper-

ations. To the contrary, those witnesses testified that the

newspaper articles did not affect the Department's effi-

ciency.

Second, Rollins and Hatler contend that the evidence

was insufficient to prove that they transferred Forsyth

and Kirks because of their complaints internally and then

through the media about the alleged wiretapping. For-

syth and Kirks testified that, two days after the first

Dallas Morning News article appeared, Rollins and Hatler

warned them to “stop the publicity” and threatened to

transfer them if further publicity ensued. The day after

the second newspaper article appeared, Rollins and

Hatler transferred the plaintiffs.

Third, Rollins and Hatler contend that the transfers

did not deprive Forsyth and Kirks of any cognizable

property right or privilege because their pay was not

2 Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d

708 (1983).

App. 8

reduced. This court has already rejected that argument

under strikingly similar facts. In Click v. Copeland, 970

F.2d 106 (5th Cir.1992), two sheriff’s deputies were trans-

ferred from the county’s law enforcement section to posi-

tions as jail guards because they had engaged in conduct

protected by the First Amendment. The employees suf-

fered no reduction in pay. However, they contended their

transfers were demotions because the jail guard positions

were much less desirable then [sic] their previous ones.

This court agreed that their transfers constituted demo-

tions in violation of § 1983. As this court explained:

Copeland maintains that his transfer of

Click and Falcon to the jail was not a demotion

because neither received a decrease in pay; in

fact Falcon received a raise. Money alone, how-

ever, does not buy happiness. The Perry Court

spoke of “benefits” generally, not just salary

[citing Perry v. Sindermann, 408 U.S. 593, 597, 92

S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972)]. The

evidence adduced at trial strongly supports the

proposition that jobs in the jail are not as inter-

esting or prestigious as jobs in the law enforce-

ment section. . . . In short, Click and Falcon’s

transfers could be considered demotions even

though they suffered no reduction in salary.

970 F.2d at 109. See also Fyfe v. Curlee, 902 F.2d 401, 404

(5th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112

L.Ed.2d 310 (1990) (holding that a transfer to a less desir-

able but equally paying job constituted a demotion).

Click does not support the proposition that every

transfer of job duties without a decrease in salary is

necessarily a demotion because it eccurs following a

App. 9

plaintiff’s exercise of protected speech; a plaintiff’s sub-

jective perception that a demotion has occurred is not

enough. Here, however, the evidence revealed that the

Intelligence Unit positions were more prestigious, had

better working hours, and were more interesting than

night patrol. Moreover, few officers voluntarily trans-

ferred from the Intelligence Unit to night patrol and other

officers had been so transferred as punishment.

Fourth, Rollins and Hatler contend that the evidence

was insufficient for a reasonable jury to conclude that

Forsyth and Kirks suffered $100,000 and $75,000 respec-

tively in emotional anguish. We disagree. Forsyth testi-

fied that she suffered depression, weight loss, intestinal

troubles, and marital problems, that she had been sent

home from work because of her depression, and that she

had to consult a psychologist. Kirks testified that he

suffered depression, sleeplessness, and marital problems.

Judgments regarding noneconomic damages are notori-

ously variable; we have no basis to reverse the jury’s

evaluation.

Fifth, Rollins and Hatler contend the evidence was

insufficient to support the jury’s award of $125,000 in

exemplary damages against each of them. We disagree;

Forsyth and Kirks presented sufficient evidence from

which a reasonable jury could conclude that Rollins and

Hatler acted with malice or a reckless or callous disregard

for the plaintiffs-appellees’ rights. See Wells v. Hico Indep.

Sch. Dist., 736 F.2d 243, 259 (5th Cir.1984), cert. dismissed,

473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). Rollins

and Hatler knew they could not demote Forsyth and

Kirks for exercising their First Amendment rights, yet the

App. 10

evidence, viewed in the light most favorable to the ver-

dict, strongly corroborates the jury’s finding that they did

so. Moreover, the $125,000 awards are not excessive: each

is less than Forsyth’s and Kirks’s actual damages.

Sixth, Rollins and Hatler contend the jury’s finding

that Vines was not liable is inconsistent with its finding

that they were liable. We disagree. Vines testified that he

had approved Forsyth’s and Kirks’s transfers based on

the information he received from Rollins and Hatler and

that he routinely approved transfers recommended by

superior officers. A reasonable jury could find that Vines

did not retaliate against Forsyth and Kirks because he

was not personally involved in their dispute and signed

the transfer papers based on information from the co-

defendants. The jury’s finding that Rollins and Hatler

had constitutionally offensive motives for the transfers

does not imply or impute the same disposition to Vines.

Finally, Rollins and Hatler contend the district court

erred in rejecting their defense of qualified immunity.

Click held, however, that “[t]he law was established

clearly enough in this circuit in January 1988 that a rea-

sonable officer should have known that if he retaliated

against an employee for exercising his First Amendment

rights, he could not escape liability by demoting and

transferring the employee rather than discharging him.”

970 F.2d at 111. The retaliatory transfers at issue here took

place a year later.

In sum, we affirm the district court’s judgment

against Rollins and Hatler under § 1983 and the accom-

panying damage awards for violating Forsyth’s and

Kirks’s First Amendment rights.

App. 11

B. The City of Dallas

The district court found that the City was jointly and

severally liable with Rollins and Hatler for $175,000 in

mental anguish damages under § 1983, or alternatively,

the City was liable under the Whistleblower Act for those

damages. The City now appeals its liability under both

statutes. We determine that the City is liable under the

Whistleblower Act.

That Act provides:

A state or local governmental body may not

suspend or terminate the employment of, or

otherwise discriminate against, a public

employee who reports a violation of law to an

appropriate law enforcement agency if the

employee report is made in good faith.

Tex.Rev.Crv.Stat.ANn. art. 6252-16a § 2 (1992).3 To estab-

lish a whistleblower claim, an employee must demon-

strate that (a) the employee reported an alleged violation

of law to an appropriate law enforcement authority; (b)

the employee made the report in good faith; (c) the

employer took an adverse employment action against the

employee because the employee made the report; and (d)

the employer’s action proximately caused the employee's

injuries. Wichita County v. Hart, 892 S.W.2d 912, 920-24

(Tex.App. — Austin 1994), reversed on other grounds, 917

S.W.2d 779 (Tex.1996).

3 In September 1993, the Whistleblower Act was amended

and recodified, Tex.Govt.Copve §§ 554.001-.009 (West

Supp.1996).

rrr

App. 12

In the instant case, it is undisputed that Forsyth and

Kirks reported alleged violations of law in good faith to

an appropriate law enforcement agency. We have already

determined that the making of the reports led to plain-

tiffs’ transfers and that Forsyth and Kirks were thereby

Jamaged. The only disputed issue is whether the Whis-

tleblower Act prohibited the DPD from transferring For-

syth and Kirks.

The City contends that the Whistleblower Act did not

prohibit the transfers; it argues that the transfers do not

constitute demotions because Forsyth and Kirks suffered

no decrease in pay, and that, in any case, demotions are

not covered by the Act. We reject both of the City’s

arguments. First, the evidence established that Forsyth’s

and Kirks’s transfers constituted demotions. Second,

Texas courts have held that the phrase “or otherwise

discriminate against” in the Act prohibits an employer

from demoting a whistleblowing employee. City of

Brownsville v. Pena, 716 S.W.2d 677, 680 (Tex.App. -

Corpus Christi 1986); City of Beaumont v. Bouillion, 873

S.W.2d 425, 445 (Tex.App. - Beaumont 1993), reversed on

other grounds, 896 S.W.2d 143 (Tex.1995). Further, we point

out that the Texas legislature has since amended the

Whistleblower Act to clarify that it covers transfers.

Tex.Govt.Cope §§ 554.001-.002 (West Supp.1996) (defining

“adverse employment actions” to include transfers).

The City next challenges the jury’s $750,000 exem-

plary damage award. Section 4(a)(2) of the Whistleblower

App. 13

Act* provides that a governmental employer can be liable

for exemplary damages if the employer acts intentionally,

fraudulently, maliciously, or with gross negligence.

Tex.Rev.Stat.ANnn. art. 6252-16a, § 4(a)(2); City of Ingleside

v. Kneuper, 768 S.W.2d 451 (Tex.App. — Austin 1989), error

denied (Oct. 25, 1989). Texas courts have construed the

term “employer” to hold the governmental entity vicari-

ously liable for the acts of its employees. E.g., Tex. Dept. of

Human Serv. v. Green, 855 S.W.2d 136, 142-43 (Tex.App. -

Austin 1993), error denied (Feb. 2, 1994) (Whistleblower

Act waives the government’s sovereign immunity and

governmental agency may be vicariously liable for acts of

low-level supervisors); City of Houston v. Leach, 819

S.W.2d 185, 200-01 (Tex.App. - Houston, 14th Dist.1991)

(City of Houston held vicariously liable under the Whis-

tleblower Act but not under 42 U.S.C. § 1983). The evi-

dence here was sufficient to impose punitive damage

liability on the City for the conduct of Rollins and Hatler.

Moreover, we reject the City’s argument that the amount

of exemplary damages assessed — $750,000 - was exces-

sive. That amount is less than four times the officers’

actual damages.

C. Other Issues

Kirks cross-appeals, contending that the district court

erred in granting judgment as a matter of law to the

appellants on his claim for lost wages. But the evidence

was insufficient to support the jury’s award. Kirks only

4 Section 4(a)(2) provides that “[a] public employee who

sues under this Act may recover . . . exemplary damages.”

App. 14

speculated during his testimony that his no-hire status

with the DPD would make it difficult for him to obtain

another job. He never testified that he actually lost work

because of that status.

Finally, both sides dispute the amount of attorneys’

fees awarded plaintiffs under § 1983 and § 4(a)(4) of the

Whistleblower Act. We find no abuse of discretion. The

district court reviewed the attorneys’ billing records in

accordance with the factors set forth in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and

reduced both the hourly rates and the billable hours

claimed by Forsyth’s and Kirks’ attorneys, but the final

award was hardly unreasonable.

Il. CONCLUSION

For the foregoing reasons, the judgment of the dis-

trict court is AFFIRMED.

APPENDIX B

App. 15

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

D.C. Docket No. 3:91-CV-344

3:90-CV-1118-T

JAN FORSYTH; RICHARD KIRKS

Plaintiffs-A ppellees-Cross-Appellants

DALLAS TX CITY OF, ET AL

Defendants

DALLAS TX CITY OF; WILLARD ROLLINS;

RICHARD HATLER

Defendants-Appellants-Cross-Appellees

Appeals from the United States District Court for the

Northern District of Texas, Dallas

Before POLITZ, Chief Judge, JONES and BARKSDALE,

Circuit Judges.

JUDGMENT

(Corrected)

(Filed Mar. 31, 1997)

This cause came on to be heard on the record on

appeal and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this court that the judgment of

the district court in this cause is affirmed.

App. 16

IT IS FURTHER ORDERED that defendant-appellant

cross-appellee pay to plaintiffs-appellees cross-appellants

the costs on appeal to be taxed by the Clerk of this Court.

IT IS FURTHER ORDERED that the issue of attor-

neys’ fees is remanded to the district court.

ISSUED AS MANDATE: MAR 31 1997

APPENDIX C

App. 17

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

JAN FORSYTH; RICHARD KIRKS,

Plaintiffs-Appellees-Cross-Appellants,

versus

DALLAS TX CITY OF, ET AL,

Defendants,

DALLAS TX CITY OF; WILLARD ROLLINS;

RICHARD HATLER,

Defendants-Appellants-Cross-Appellees.

Appeals from the United States District Court

for the Northern District of Texas, Dallas

(Corrected)

(Filed Mar. 31, 1997)

Before POLITZ, Chief Judge, JONES and BARKSDALE,

Circuit Judges.

BY THE COURT:

Appellants’ motions for rehearing and rehearing en

banc are denied. The order of this court entered on

November 15, 1996 remains in force and in effect. This

order is then issued as and for the mandate.

APPENDIX D

hearers ‘jal

App. 18

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

JAN FORSYTH; RICHARD KIRKS

Plaintiffs-Appellees-Cross-Appellants

DALLAS TX CITY OF, ET AL

Defendants

DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD

HATLER

Defendants-Appellants-Cross-Appellees

Appeals from the United States District Court for the

Northern District of Texas, Dallas

(Filed Nov. 15, 1996)

Before POLITZ, Chief Judge, JONES and BARKSDALE,

Circuit Judges.

BY THE COURT:

IT IS ORDERED that the supplemental motion of

Appellees to amend the August 16, 1996 judgment is

GRANTED to the extent necessary to remand the issue of

attorneys’ fees;

App. 19

IT IS FURTHER ORDERED that the alternative

request of Appellees to remand the issue of attorney’s

fees back to the District Court for determination is

GRANTED.

IT IS FURTHER ORDERED that the alternative

request of Appellees that the Court independently set the

award of attorneys’ fees is DENIED as unnecessary.

APPENDIX E

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD KIRKS,

et al.,

Plaintiffs,

—"S No. 3:90-CV-1118-T

CITY OF DALLAS, TEXAS,

et al.,

Defendants.

AMENDED FINAL JUDGMENT

(Filed Mar. 31, 1995)

(entered on docket 4-3-95 pursuant to

F.R.C.P. Rules 58 and 79a)

This action came before the Court on a jury trial on

January 3, 1995, Honorable Robert B. Maloney, presiding,

and the issues having been duly considered and a deci-

sion having been rendered.

It is ORDERED and ADJUDGED that on Plaintiff

Kirks’s claims pursuant to 42 U.S.C. § 1983, judgment is

entered in Kirks’s favor and against Defendants Rollins,

Hatler, and the City of Dallas, jointly and severally, in the

amount of $75,000 for mental anguish.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiff Forsyth’s claims pursuant to 42 U.S.C. § 1983,

App. 21

judgment is entered in Forsyth’s favor and against Defen-

dants Rollins, Hatler, and the City of Dallas, jointly and

severally, in the amount of $100,000 for mental anguish.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment

is entered in Plaintiffs’ favor and against Defendant

Rollins in the amount of $125,000 for exemplary damages.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment

is entered in Plaintiffs’ favor and against Defendant

Hatler in the amount of $125,000 for exemplary damages.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiff Kirks’s claims pursuant to the Texas Whis-

tleblower Act, judgment is entered in Kirks’s favor and

against Defendant City of Dallas in the amount of $75,000

for mental anguish. However, these damages may only be

recovered by Plaintiff Kirks in the event that he is unable

to recover these same damages for his claims brought

pursuant to 42 U.S.C. § 1983.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiff Forsyth’s claims pursuant to the Texas Whis-

tleblower Act, judgment is entered in Forsyth’s favor and

against Defendant City of Dallas in the amount of

$100,000 for mental anguish. However, these damages

may only be recovered by Plaintiff Forsyth in the event

that she is unable to recover these same damages for her

claims brought pursuant to 42 U.S.C. § 1983.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to the Texas Whistleblower

Act, judgment is entered in Plaintiffs’ favor and against

App. 22

Defendant City of Dallas in the amount of $750,000 for

exemplary damages.

It is FURTHER ORDERED and ADJUDGED that

Plaintiffs Kirks and Forsyth take nothing against Defen-

dant Vines.

It is FURTHER ORDERED and ADJUDGED that

judgment is entered in Plaintiffs’ favor and against

Defendants Rollins, Hatler, and the City of Dallas, jointly

and severally, in the amount of $146,365 for reasonable

attorneys’ fees and in the amount of $7,105.15 for costs.

It is FURTHER ORDERED and ADJUDGED that

Plaintiffs receive post-judgment interest at the rate of

7.34% per year from the date of entry of judgment until

paid on the total of the above-listed amounts.

It is FURTHER ORDERED and ADJUDGED that all

relief not specifically granted herein is denied.

Signed this 30th day of March 1995.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge

APPENDIX F

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD KIRKS,

et al.,

Plaintiffs,

ns No. 3:90-CV-1118-T

CITY OF DALLAS, TEXAS,

et al.,

Defendants.

ORDER DENYING DEFENDANTS’

MOTIONS FOR JUDGMENT AS A MATTER OF LAW

(Filed Jan. 25, 1995)

At the close of Plaintiffs’ case-in-chief, Defendants

moved for a judgment as a matter of law pursuant to Fep.

R. Crv. P. 50(a). Defendants’ motion was denied. At the

close of all of the evidence, Defendants renewed their

motion. After consideration of the motion, the arguments,

and the evidence presented at the trial, the Court denied

the motion.

Rule 50(a) provides:

If during a trial by jury a party has been fully

heard on an issue and there is no legally suffi-

cient evidentiary basis for a reasonable jury to

find for that party on that issue, the court may

determine the issue against that party and may

grant a motion for judgment as a matter of law

App. 24

against that party with respect to a claim or

defense that cannot under the controlling law be

maintained or defeated without a favorable

finding on that issue.

The City of Dallas first moved for judgment as a

matter of law on the issue of whether the city has an

officially adopted and promulgated policy of retaliation

in violation of 42 U.S.C. § 1983. It argued that it cannot be

held liable for civil rights violations under a theory of

respondeat superior or vicarious liability. The city also

moved for judgment as a matter of law on the issues of

whether retaliation is a persistent, widespread practice of

city officials or employees, that such action is so common

and well-settled as to constitute a custom that fairly

represents municipal policy, and that actual or construc-

tive knowledge of such custom is attributable to the

governing body of the municipality or to an official to

whom that body had delegated policy-making authority.

The Court was of the opinion that the city had not

established as a matter of law that an “official policy”

regarding retaliation did not exist at the time Plaintiffs

were transferred from the intelligence division to the

patrol division. “Official policy” is defined as:

1. A policy statement, ordinance, regulation, or

decision that is officially adopted and pro-

mulgated by the municipality’s lawmaking

officers or by an official to whom the law-

makers have delegated policy-making

authority; or

2. A persistent, widespread practice of city

officials or employees, which, although not

App. 25

authorized by officially adopted and pro-

mulgated policy, is so common and well set-

tled as to constitute a custom that fairly

represents municipal policy. Actual or con-

structive knowledge of such custom must be

attributable to the governing body of the

municipality or to an official to whom that

body had delegated policy-making author-

ity.

Bennett v. City of Slidell, 735 F.2d 861 (Sth Cir. 1984), cert.

denied, 472 U.S. 1016 (1985). Municipal liability attaches

only where the decision-maker possesses final authority

to establish municipal policy with respect to the action

ordered. Pembaur v. City of Cincinnati, 475 U.S. 469, 481

(1986). When an official’s discretionary decisions are con-

strained by policies not of that official’s making, those

policies, rather than the subordinate’s departures from

them, are the act of the municipality. St. Louis v. Praprot-

nik, 485 U.S. 112, 127 (1988). Similarly, when a subordi-

nate’s decision is subject to review by the municipality's

authorized policymakers, they have retained the author-

ity to measure the official’s conduct for conformance with

their policies. Id. If the authorized policymakers approve

a subordinate’s decision and the basis for it, their ratifica-

tion would be chargeable to the municipality because

their decision is final. Id.

After reviewing the evidence admitted at trial, the

Court was of the opinion that Chiefs Hatler, Rollins, and

Vines did not have final authority with respect to the

decision to transfer Kirks or Forsyth. Pursuant to Section

2, Chapter XII of the Dallas City Charter, which was

admitted into evidence, the police chief shall “have

immediate direction and control of the police department,

App. 26

subject to the supervision of the city manager, and also

subject to such rules, regulations and orders as the city

manager may prescribe, not inconsistent with the ordi-

nances of the city, and shall promulgate all orders, rules

and regulations for government of the police force.”

Because the police chief maintained supervisory control

over his deputy chiefs and the city manager maintained

supervisory control over the police chief, Chiefs Hatler,

Rollins, and Vines did not have final authority. Although

the individual defendants did not have final authority, a

fact question remained regarding whether there was in

fact an official policy of retaliation.

Defendants next moved for judgment as a matter of

law on the issue of whether Plaintiffs’ speech was pro-

tected. They argued that Plaintiffs did not supply the

information to the reporter and thus the speech was not

theirs to protect. They next argued that Plaintiffs did not

speak as citizens upon matters of public concern but

instead as employees upon issues of personal interest.

Alternatively, Defendants argued that, if Plaintiffs did

speak upon matters of public concern, Defendants’ inter-

est in promoting the efficiency of the public services

performed by the intelligence division outweighed Plain-

tiffs’ interest in commenting upon matters of public con-

cern.

To establish a constitutional violation, plaintiffs must

first prove that their speech involved a matter of public

concern. Connick v. Meyers, 461 U.S. 138 (1983). Second,

they must demonstrate that their interest in commenting

upon matters of public concern is greater than defen-

dants’ interest in promoting the efficiency of the public

App. 27

services they perform. Pickering v. Board of Educ., 391 U.S.

563, 568 (1968).

The Court found that the newspaper articles intro-

duced into evidence constituted the First Amendment

speech expressions of Plaintiffs. The Court further found

that, although the actual statements made were made by

counsel for Plaintiffs, the statements were made pursuant

to authority given by Plaintiffs. See Brawner v. City of

Richardson, 855 F.2d 187 (5th Cir. 1988). The Court con-

cluded that the speech made by Plaintiffs’ authorized

agent was sufficiently connected to Plaintiffs to be con-

sidered Plaintiffs’ speech.

After examination of the newspaper articles, the

Court found that the articles detail allegations of criminal

wrongdoing by Dallas police officials and allegations of

conflict of interest and malfeasance by police officials in

ignoring the involvement of a politically connected attor-

ney in an alleged illegal wiretap operation. However, the

speech was made in connection with a lawsuit to be filed

by Plaintiffs. Thus, the Court believed that Plaintiffs had

a mixed motive in exercising their right to free speech.

The Court then weighed whether Plaintiffs were speaking

as employees involved in a personal employment dispute

or as citizens generally speaking out on a matter of public

concern. Considering the record in this case, the content

of the statements, and the context and circumstances

under which the statements were made, the Court con-

cluded that Plaintiffs spoke predominately [sic] as citi-

zens and the content addressed a matter of public

concern.

App. 28

The Court further found that Plaintiffs’ interest in

speaking on matters of public concern outweighed Defen-

dants’ interest in promoting the efficiency of the public

services they perform. Specifically, Plaintiffs’ interest and

the public’s interest in ensuring that favoritism and dere-

liction of duty do not occur in the police department

outweighed Defendants’ interest in maintaining control

over their employees. Accordingly, Plaintiffs’ speech was

protected speech under the First Amendment as a matter

of law.

Defendants next moved for judgment as a matter of

law on Plaintiffs’ whistleblower causes of action. They

argue that Plaintiffs’ transfers were not adverse employ-

ment actions. Alternatively, they argued that, if the trans-

fers were adverse, the transfers were not done for

retaliatory purposes.

After reviewing the evidence presented at trial, the

Court was of the opinion that fact issues existed as to

whether the transfers were adverse employment actions

and whether the transfers were done for retaliatory pur-

poses.

Last, the individual defendants moved for judgment

as a matter of law that they are protected by qualified

immunity.

The Court ruled that for the individual defendants to

avail themselves of qualified immunity there must be

shown that the individual defendants did not know and

reasonably would not have known that retaliation against

a person for exercising a First Amendment right was

illegal. The testimony at triai does not support such a

finding, since the Defendants testified that they did know

App. 29

such action would be illegal and that retaliation did not

enter into their decision to transfer Plaintiffs. The Court

concluded that the issue of qualified immunity was not

raised and that there existed an issue of material fact as to

the individual defendants’ real motive in transferring

Plaintiffs. Accordingly, Defendants’ Motions for Judg-

ment as a Matter of Law should be denied.

It is therefore ORDERED that the oral Motions for

Judgment as a Matter of Law made by Defendants at the

close of all of the evidence on January 12, 1995, are

denied.

Signed this 25th day of January 1995.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge

APPENDIX G

LE TS Ts | PT FST RUE FOURS” INET TEERRRRRRE ITS Se 6-7 Soe PH

Sate

App. 30

K. LYBRAND - Recross-Examination by Aldrine

OUT OF THE PRESENCE OF THE JURY

Volume V

+ * *

[p. 117] review some of the authority presented.

MR. LARSON: I’m sorry. I didn’t hear you,

Judge?

MR. BOYD: Come back at one.

THE COURT: Come back at one. I’m going to

review some of the authorities that’s been presented.

MR. GILLMEN: All rise.

(Lunch recess.)

MR. GILLMEN: All rise.

(Judge enters the courtroom.)

THE COURT: The court has used the lunch

hour time to review some, but not all of the authorities

presented to the court.

There is not enough authority that the court has

reviewed at this time for the court to be able to grant a

motion for judgment. So at this time, the motion for

judgment are denied both as to all defendants.

Of course, each and all of the defendants may renew

their motion at the close of all the evidence, and the court

will consider all of the arguments that have been previ-

ously made for judgment at that time.

Okay. Is the defendant prepared to proceed?

App. 31

MR. HOPKINS: Yes, Your Honor.

MR. BOYD: May we confer briefly, Your Honor,

in view of the court’s ruling?

THE COURT: You may.

+ + a

APPENDIX H

App. 32

CHARGE CONFERENCE

OUT OF THE PRESENCE OF THE JURY

Volume VI

[p. 62] THE COURT: Then I think that I will

leave that decision to you.

All right. The court will be in recess.

THE CLERK: All rise.

(Court was in recess.)

CHARGE CONFERENCE

THE CLERK: All rise.

(Judge enters the courtroom.)

THE CLERK: Be seated, please.

THE COURT: All right. As usual, things seem

to take about three times as long as I originally estimate

they’re going to take, so the charge that I have - the draft

of the charge that I have put in your hands is very much a

rough draft.

There are certain areas that some of the liability and

damage questions I haven’t made a decision of how to

break those out as to individual defendants, things of that

nature that is more mechanical than they are substantive,

but there is still lot of decisions to be made on the charge,

so don’t anyone get alarmed or self-satisfied if the charge

looks the way you like it, because it may look entirely

different tomorrow.

Before I start on the charge, I will be issuing a more

complete order on the defendant’s Rule 50 motions, but

App. 33

to dispose of certain matters that the court feels it should

[p. 63] rule on as a matter of law, I will give you some-

what a shorthand - as a matter fact, the longhand ruling

on those matters.

As to the question of the plaintiffs’ free speech First

Amendment questions, the court finds that the news-

paper articles introduced in evidence constitute the First

Amendment speech expression of the plaintiffs.

The court finds that although the actions, statements

were made by counsel for plaintiffs, the statements — that

the statements were made pursuant to authority given to

counsel by the plaintiffs.

The court concludes that the speech made by an

authorized agent of the plaintiffs is sufficient to be con-

nected to plaintiffs, to be considered plaintiffs’ speech.

The court, after examination of the articles, finds that

the articles detail allegations of criminal wrongdoing by

Dallas police officials and allegations of conflict of inter-

est and malfeasance by police officials in the authority

involvement of the politically connected attorney in an

illegal wiretap operation.

Consequently, the court concludes that the plaintiffs’

speech addressed a matter of public concern as the

speech as made in connection with the lawsuit to be filed

by the plaintiffs, the court believes that the plaintiffs

having [p. 64] mixed motives in exercising their right to

free speech.

However, the court has weighed whether the plain-

tiffs were speaking as employees involved in a personal

‘eal

App. 34

employment dispute or as citizens genuinely speaking

out on a matter of public concern.

Considering the record in this case, the content of the

statements, and the context of the circumstances under

which the statements were made, the court finds that at

the time the statements were made the content of the

statements in considering the content of the statement,

the plaintiffs had little to gain personally from the state-

ments and that the evidence produced in this trial is

sufficient to reasonably justify the plaintiffs’ belief that a

coverup was in progress.

The court finds that the plaintiffs’ interest and the

public’s interest in ensuring that favoritism and question-

able criminal investigation do not occur in the police

department outweighs the defendants’ interest in main-

taining strict control over the statements made by its

employees.

Therefore, the court concludes that the plaintiffs

spoke primarily as citizens in the content address in a

matter of public concern and, therefore, was protected

speech under the First Amendment as a matter of law.

The court finds that includes that municipal liability

[p. 65] attaches only where the decision-makers possess

final authority to establish municipal policy with respect

to the action ordered and the official’s discretionary deci-

sion are constrained by the policy is not of that official’s

making. Those policies, rather than the subordinate’s

departure from them the act of municipality.

Similarly, when a subordinate’s decision is subject to

review by the municipality’s authorized policy makers,

App. 35

they have retained hereby to measure the official’s con-

duct or performance with their policies.

After reviewing the evidence admitted in trial, the

court is of the opinion that Chief Vines did not have the

final authority with respect to the decision to transfer

Kirks or Forsyth.

Pursuant to Section 2, Chapter 12 of the Dallas City

Charter, which is submitted into evidence, the Chief of

Police shall have immediate direction and control over

the police department subject to supervision of the City

Manager and also subject to such rules and regulations

and orders that the City Manager may prescribe, not

inconsistent with the ordinance of the city and shall pro-

mulgate all orders, rules and regulations for the govern-

ment of the police force.

Because the City Manager maintains supervisory

control over the Police Chief, Chief Vines did not have

final [p. 66] authority.

Therefore, the court finds that the actions of Chief

Vines were not sufficient to establish as a matter of law

that the — an official policy of the City of Dallas.

It does not mean that it cannot be established by

other means, but simply not simply because he made the

decision in the case.

As to qualified immunity for the individual defen-

dants to avail themselves for qualified immunity, there it

must be shown that the individual defendant did not

know and reasonably would not have known that retalia-

tion against the person for exercising their First Amend-

ment right was illegal.

ee ee! eee

App. 36

Testimony at trial does not support such a finding

since the defendants testified they did not know - that

they did know such action would be illegal and that

retaliation did not enter into their decision to transfer the

plaintiffs.

Therefore, the court concludes that qualified immu-

nity is not an [sic] raised issue, is a material fact issue as

to the individual defendant's real motive in transferring

plaintiffs.

Therefore, in summary, the court finds that the plain-

tiffs’ speech was a matter of public concern and it was

protected speech, that Mack Vines, police chief at the time

[p. 67] in question, was not a final decision maker or

policy maker as regards to these plaintiffs. His actions do

not establish an official policy of the City of Dallas, and

that the individual defendants are not entitled to quali-

fied immunity.

Now, I'll take up the charge.

Mr. Larson, I'll let you go first.

MR. LARSON: Yes, sir.

I assume in light of what you just read, some of the

charge is going to be changed in regards to reflect that.

THE COURT: That’s correct.

MR. LARSON: Okay. All right.

THE COURT: Let me kind of give you an idea

of how I go about these things. And I didn’t have time to

complete it.

App. 37

Since the plaintiff has the burden of proof, I generally

start out with the plaintiffs’ charge and try to give the

plaintiff, in the draft copy, as much charge as I can in

good conscious [sic] allow the plaintiff to have. That does

not mean that I have rejected the defendants’ requested

charge.

So I just want you to know procedures there and so

the charge will look, at this point, as if it is your charge -

MR. LARSON: Yes, sir.

THE COURT: - but it may not end up that way.

APPENDIX I

App. 38

OBJECTIONS TO THE CHARGE OUT OF

THE PRESENCE OF THE JURY

Volume III

+ oF *

[p. 5] THE COURT: Thank you.

MR. ALDRINE: Yes, Your Honor. First of all, on

charge — page 6, with the intent, the defendants object to

the instructions that are given and seek to include any

instructions [sic] on intent that’s found in Longoria V.

Wilson, it’s 730 F 2d 300, and Young V. City of New

Orleans, F 2d 59 - F 2d 794.

We feel that the instruction included does not com-

plete — fails to adequately inform the jury of the applica-

ble laws at issue in the instruction as is and as is in all

probability will cause a condition of improper verdict

against the defendants.

THE COURT: Overruled.

MR. ALDRINE: On turning to page 9, lines 3

and 5, may be awarded exemplary damages, we seek to

have that excluded or at least qualified. It seems to be too

conclusory and misleading and the failure of the court to

include a requested instruction does not adequately

inform the jury of applicable law, and the failure to

include a more clear instruction in all probably [sic] will

result in an improper verdict against the defendants.

THE COURT: Overruled.

MR. ALDRINE: Turning to page 14, last full

paragraph, defendants object to its inclusion and seek to

replace it with defendants’ proposed instructions found

App. 39

on [p. 6] defendants’ proposed charge, pages 18 through

20.

We feel that the failure of the court to include this |

requested instruction does not adequately inform the jury

of applicable law, and the failure to include the instruc-

tion in all probability will result in an improper verdict

against the defendants.

THE COURT: Overruled.

MR. ALDRINE: Turning to, I guess you would

say, page 17, Your Honor. We believe an additional ques-

tion should precede question 3 regarding whether the

plaintiffs actually reported alleged illegal conduct to the

press.

We feel that the failure of the court to include a

requested instruction on this issue does not adequately

provide the jury with the opportunity to apply the law,

and the failure to include the question in all probability

will result in an improper verdict against the plaintiffs.

THE COURT: Overruled.

MR. ALDRINE: Turning to page 18, line 7, per-

mitting retaliation, defendants seek to change that to — ;

that phrase to retaliating. We feel that the question as is is |

misleading to the jury.

THE COURT: Overruled. |

;

MR. ALDRINE: Turning to page 19, Your

Honor, lines 33 through 37, we feel the instruction as is is

conclusory and comments on the weight of the evidence.

We [p. 7] feel that the instruction is not complete and fails

to adequately inform the jury with the applicable laws.

App. 40

The issue and any instruction as is, in all probability, will

cause an improper verdict against the defendants.

THE COURT: Overruled.

MR. ALDRINE: At this time, Your Honor, we

also object to the failure to include an instruction and

question regarding qualified immunity as to the defen-

dants as contained in defendants’ charge page 15 and 17.

THE COURT: Requested charge is denied.

MR. ALDRINE: Turning to page 26, Your

Honor, we object to the inclusion of question C and D as

there is insufficient evidence to warrant submission of the

issue to the jury.

THE COURT: Overruled.

MR. ALDRINE: And, furthermore, Your Honor,

we also — if C and D are to be included, we seek an

instruction with regard to earnings in the future and in

the past as the court has failed to include such an instruc-

tion.

I think there was one included yesterday, Your

Honor.

THE COURT: I’m not following you.

MR. ALDRINE: I think that in yesterday’s

charge there was an instruction —

THE COURT: I hadn’t changed that from yes-

terday. [p. 8] You are on page 26, are you not?

MR. ALDRINE: Yes, Your Honor.

THE COURT: Okay.

App. 41

MR. ALDRINE: I’m just looking back at yester-

day’s charge on the double recovery and compensatory

damages section.

THE COURT: Yes. But I thought you were talk-

ing about there was something that I had on page 26.

MR. ALDRINE: Well, you started the question,

Your Honor, but preceding that, if you were going to

include the question on page 26 regarding past and future

earning capacities, there is no longer an instruction on

that.

And yesterday’s charge there was an instruction that

said if plaintiffs prove that the injury they suffered

extended into the future because it will be denied future

economic opportunities because of the defendants’ illegal

actions and then the damages you may award - you

award may compensate them for that loss in compensat-

ing in your calculation. However, you must include a

reduction of future damages as a loss of income the

present value in order to take into account —- into account

the earning power of the money awarded.

I don’t find that in the charge today.

THE COURT: I did take that out. I may put that

back in.

[p. 9] For purposes of your record, I’m going to deny

it. I may put it in so that you will have a record on my

ruling as it turns out. If I don’t put it back in, I’ll deny it

at this time. |

eee

App. 42

MR. ALDRINE: Turning to page 28 and 29,

Your Honor, we further stress that any issue and instruc-

tion to the jury regarding punitive damages is unwar-

ranted. There is simply insufficient evidence to warrant

submission of this issue to the jury.

THE COURT: Overruled.

MR. ALDRINE: Okay. Your Honor, with respect

to questions 9, 10, 11 we feel that the question should not

be included because of the fact that the first question on

punitive damages asks the jury do you want to punish

the defendants. But even if they would say no, it seems as

if the next question would Say are you sure you don’t

want to punish the defendants for punitive damages,

whereas the next question would also say are you really

sure.

THE COURT: What do you mean?

MR. ALDRINE: I mean, it doesn’t -

THE COURT: I’m not following.

MR. ALDRINE: - three shots at the apple -

THE COURT: They are a [sic] different defen-

dants.

MR. ALDRINE: Well, that would bring up

another objection, Your Honor. We feel if they’re to be

included [p. 10] that the City of Dallas should be

included back on page 9 at the bottom of the fact on page

29, Your Honor, at the bottom of Vines, Rollins and

Hatler. It seems that that’s a comment on the weight of

the evidence. Since we have a separate — if we separate

App. 43

the City of Dallas from the individual defendants on a

separate question.

THE COURT: But it is a separate question. So

your objection is overruled on that.

MR. ALDRINE: Nothing else, Your Honor.

THE COURT: Mr. Boyd.

MR. BOYD: We renew our motion for judgment

on the law. We - that we made previously and we suggest

that now that the evidence has closed on both sides that

there is no evidence on the alternative. There is insuffi-

cient evidence to support the submission of any issues or

any jury verdict on those issues against Mack Vines.

THE COURT: Overruled.

MR. BOYD: All right. We would adopt the

other objections made by the Assizzant City Attorney in

this case without repeating them.

THE COURT: Accepted.

MR. BOYD: I assume the ruling will be the

same.

THE COURT: Accepted.

THE COURT: All right. Is there anything fur-

ther before I take up argument?

a + *

APPENDIX J

App. 44

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

JAN FORSYTH; RICHARD KIRKS

Plaintiffs-Appellees-Cross-Appellants

DALLAS TX CITY OF, ET AL

Defendants

DALLAS TX CITY OF; WILLARD ROLLINS;

RICHARD HATLER

Defendants-Appellants-Cross-Appellees

Appeals from the United States District Court for the

Northern District of Texas, Dallas

(Filed Apr. 21, 1997)

ORDER:

(X) The motion of appellant to recall and stay of the

issuance of the mandate pending petition for writ of

certiorari is DENIED.

( ) The motion of appellant to recall and stay of the

issuance of the mandate pending petition for writ of

certiorari is GRANTED to and including P

the stay is in force until the final disposition of the

App. 45

case by the Supreme Court, provided that the certifi-

cate of the Clerk of the Supreme Court that the

certiorari petition has been filed is also filed with

this court within the time stated above. The clerk

shall issue a mandate upon the filing of a copy of an

order of the Supreme Court denying the writ, or

upon the expiration of this stay unless the certificate

is filed with the clerk of this court within that time.

a /s/ Edith H. Jones

UNITED STATES CIRCUIT

JUDGE

APPENDIX K

ere

App. 46

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

D.C. Docket No. 3:91-CV-344

3:90-CV-1118-T

JAN FORSYTH; RICHARD KIRKS

Plaintiffs-A ppellees-Cross-A ppellants

DALLAS TX CITY OF, ET AL

Defendants

DALLAS TX CITY OF; WILLARD ROLLINS;

RICHARD HATLER

Defendants-Appellants-Cross-Appellees

Appeals from the United States District Court for the

Northern District of Texas, Dallas

Before POLITZ, Chief Judge, BARKSDALE, and JONES,

Circuit Judges.

JUDGMENT

(Filed Aug. 16, 1996)

This cause came on to be heard on the record on

appeal and was argued by counsel.

App. 47

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this court that the judgment of

the district court in this cause is affirmed.

IT IS FURTHER ORDERED that defendant-appellant

cross-appellee pay to plaintiffs-appellees cross-appellants

the costs on appeal to be taxed by the Clerk of this Court.

ISSUED AS MANDATE: MAR 06 1997

APPENDIX L

Fa rhs onal A WORSE HRs to

a SAAR ARSIOSTEAS ELSI DSS a cS en SRSA LSM ESTUARINE MA HO DAG AW BS pena Bo we Cpe Pooh OL

App. 48

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

D.C. Docket No. 3:91-CV-344

3:90-CV-1118-T

JAN FORSYTH; RICHARD KIRKS

Plaintiffs-A ppellees-Cross-Appellants

DALLAS TX CITY OF, ET AL

Defendants

DALLAS TX CITY OF; WILLARD ROLLINS;

RICHARD HATLER

Defendants-Appellants-Cross-Appellees

Appeals from the United States District Court for the

Northern District of Texas, Dallas

Before POLITZ, Chief Judge, BARKSDALE, and JONES,

Circuit Judges.

JUDGMENT

(Filed Aug. 16, 1996)

This cause came on to be heard on the record on

appeal and was argued by counsel.

App. 49

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this court that the judgment of

the district court in this cause is affirmed.

IT IS FURTHER ORDERED that defendant-appellant

cross-appellee pay to plaintiffs-appellees cross-appellants

the costs on appeal to be taxed by the Clerk of this Court.

ISSUED AS MANDATE: MAR 06 1997

APPENDIX M

puiersiapep is ee 5

i ASU AULA BIS Hekate os

Mini Re L ay He A IOC RS,

App. 50

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10360

JAN FORSYTH; RICHARD KIRKS

Plaintiffs-A ppellees-Cross-A ppellants

DALLAS TX CITY OF, ET AL

Defendants

DALLAS TX CITY OF; WILLARD ROLLINS;

RICHARD HATLER

Defendants-Appellants-Cross-Appellees

Appeal from the United States District Court for the

Northern District of Texas, Dallas

(Filed Mar. 1, 1996)

ORDER:

IT IS ORDERED that appellees cross-appellants’

motion to strike certain portions of reply brief of appel-

lants cross-appellees is denied.

/s/ Jacques L. Wiener, Jr.

Jacques L. Wiener, Jr.

UNITED STATES CIRCUIT

JUDGE

APPENDIX N

App. 51

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD KIRKS,

et al.,

Plaintiffs,

v. No. 3:90-CV-1118-T

CITY OF DALLAS, TEXAS,

et al.,

Defendants.

ORDER DECLARING MOOT RENEWED MOTION

FOR JUDGMENT AS A MATTER OF LAW AND

DENYING IN PART AMENDED RENEWED

MOTION FOR JUDGMENT AS A MATTER OF

LAW AND DENYING IN PART ALTERNATIVE

MOTION FOR NEW TRIAL

(Filed Mar. 31, 1995)

(Entered on docket 4-3-95 pursuant to

F.R.C.P. Rules 58 and 79a)

Before the Court are Defendants’ Renewed Motion

for Judgment as a Matter of Law, Amended Renewed

Motic.: for Judgment as a Matter of Law, and Motion for

New Trial in the Alternative to their Renewed Motion for

Judgment as a Matter of Law. The motions are opposed.

After consideration of the motions, responses, and re-

plies, the Court is of the opinion that the Renewed

Motion for Judgment as a Matter of Law should be

declared moot because the amended motion supersedes

App. 52

it. The Court is further of the opinion that Defendants’

Amended Renewed Motion for Judgment as a Matter of

Law and Alternative Motion for New Trial should be

denied in part.

Defendants move the Court to set aside the verdict

and judgment in this case, vacate the Court’s January 27,

1995, Order Denying Defendants’ Motions for Judgment

as a Matter of Law, and dismiss this case against them

pursuant to Fep. R. Civ. P. 50(b). Alternatively, they move

the Court for a new trial pursuant to Fep. R. Civ. P. 59.

In their Amended Renewed Motion for Judgment as

a Matter of Law, Defendants essentially reargue the same

points addressed in their earlier Motions for Judgment as

a Matter of Law with a few exceptions. They argue that

(1) Plaintiffs’ transfers were not adverse employment

actions; (2) Plaintiffs failed to establish that they made

the expressive conduct at issue; (3) Plaintiffs failed to

overcome the public concern threshold as they were

speaking out primarily as employees embroiled in a per-

sonal employment dispute; (4) Defendants’ interest in

promoting the efficiency of the public services performed

by the intelligence division outweighs Plaintiffs’ interest,

if any, in commenting upon matters of public concern; (5)

Defendants Rollins and Hatler were entitled to the

defense of qualified immunity; (6) there is no evidence

that the City of Dallas has an officially adopted and

promulgated policy of retaliation in violation of 42 U.S.C.

§ 1983; (7) there is no evidence that Plaintiffs were dis-

criminated against under the Texas Whistleblower Act;

(8) a finding of no liability as to Defendant Vines must

lead to a finding of no liability as to the other defendants;

(9) there is no evidence to support an award of punitive

App. 53

damages against Defendants Rollins and Hatler under 42

U.S.C. § 1983; (10) punitive damages are not recoverable

against a municipality under 42 U.S.C. § 1983; and (11)

there is no evidence to Support an award of punitive

damages against the City of Dallas under the Texas Whis-

tleblower Act.

The Court declines to address those arguments that

have been previously briefed by the parties and ruled

upon by the Court. To do so would be a waste of scarce

judicial resources. Accordingly, the Court reaffirms its

rulings in its January 27, 1995, Order Denying Defen-

dants’ Motions for Judgment as a Matter of Law with

respect to Defendants’ arguments that: (1) Plaintiffs’

transfers were not adverse employment actions; (2) Plain-

tiffs failed to establish that they made the expressive

conduct at issue; (3) Plaintiffs failed to overcome the

public concern threshold as they were speaking out pri-

marily as employees embroiled in a personal employment

dispute; (4) Defendants’ interest in promoting the effi-

ciency of the public services performed by the intel-

ligence division outweighs Plaintiffs’ interest, if any, in

commenting upon matters of public concern; (5) Defen-

dants Rollins and Hatler were entitled to the defense of

qualified immunity; and (6) there is no evidence that the

City of Dallas has an officially adopted and promulgated

policy of retaliation in violation of 42 U.S.C. § 1983.

Moreover, the Court finds that sufficient evidence existed

to support the jury’s findings with regard to the above

issues.

With regard to the remaining issues the Court finds

that there was sufficient evidence to support a finding

that Plaintiffs were discriminated against under the Texas

App. 54

Whistleblower Act. Additionally, sufficient evidence exis-

ted to support an award of punitive damages against

Defendants Rollins and Hatler for violating 42 U.S.C.

§ 1983 and against the City of Dallas for violating the

Texas Whistleblower Act. The Court disagrees that a find-

ing of no liability as to Defendant Vines would lead to a

finding of no liability against Defendants Rollins and

Hatler. Last, Plaintiffs concede and the Court agrees that

punitive damages are not recoverable against a munici-

pality under 42 U.S.C. § 1983. See City of Newport v. Fact

Concerts, Inc., 453 U.S. 247 (1981).

Accordingly, Defendants’ Amended Renewed Motion

for Judgment as a Matter of Law should be denied except

that punitive damages are not recoverable against the

City of Dallas under 42 U.S.C. § 1983.

In Defendants’ Alternative Motion, they move for a

new trial, an amended final judgment, or a remittitur.

They repeat their arguments presented in their Amended

Renewed Motion for Judgment as Matter of Law with a

few exceptions. For the sake of judicial economy, the

Court will not revisit Defendants’ repeated arguments

and will only address their newly presented issues.

Defendants first argue that the Court erred in sub-

mitting the following issues to the jury because there was

insufficient evidence: (1) whether the city has an officially

adopted and promulgated policy of retaliation in viola-

tion of 42 U.S.C. § 1983; (2) whether punitive damages

should be awarded under 42 U.S.C. § 1983 and the Texas

Whistleblower Act; and (3) what amount of damages

would compensate Plaintiffs Kirks and Forsyth for their

past and future mental anguish.

App. 55

The Court finds that there was sufficient evidence to

submit the above issues to the jury.

Defendants next argue that the Court erred in failing

to submit issues to the jury regarding whether Plaintiffs

reported any alleged illegal conduct to the press and

regarding the issue of qualified immunity as to Defen-

dants Rollins and Hatler.

The Court is of the opinion that it did not error [sic]

in omitting the above issues to the jury.

Defendants next argue that the Court erred by sub-

mitting an issue to the jury regarding the amount of

damages that would compensate Kirks for his loss of past

earnings and loss of future earning Capacity. They con-

tend that the great weight of the evidence established no

basis for an award of loss of past earnings or loss of

future earning capacity. They also argue that his testi-

mony regarding his no-rehire status was irrelevant and

should have been excluded.

The Court finds that there was insufficient evidence

to support an award of damages for Kirks’s loss of past

earnings and loss of future earning capacity. Kirks specu-

lated that because of his no-rehire status it would be

difficult for him to obtain employment. However, he

never testified that he actually lost work because of that

status. Accordingly, the Final Judgment will be amended

to delete the award for Kirks’s loss of past earnings and

loss of future earning capacity.

Defendants next argue that the jury’s answers on

punitive damages were inconsistent. They contend that

Plaintiffs claimed the same damages on the same facts

App. 56

under their § 1983 claims and their Texas Whistleblower

claims yet the jury awarded them $125,000 in punitive

damages for the § 1983 violations and $750,000 in puni-

tive damages for the Texas Whistleblower Act violations.

The jury actually awarded Plaintiffs $375,000 in puni-

tive damages for their claims brought pursuant to 42

U.S.C. § 1983. It awarded Plaintiffs $125,000 in punitive

damages from each of Defendants Rollins, Hatler, and the

City of Dallas. The Court is of the opinion that the jury’s

answers on punitive damages were not inconsistent in

that the damages were awarded for different conduct.

One award was related to violations of Plaintiffs’ First

Amendment rights while the other was related to viola-

tions of the Texas Whistleblower Act.

Defendants next argue that the great weight of the

evidence established that the verdict regarding mental

anguish and punitive damages is unreasonable and exces-

sive.

The Court disagrees and finds that sufficient evi-

dence was presented to the jury with regard to mental

anguish and punitive damages.

Alternatively, Defendants argue that they are entitled

to a remittitur of the damages awarded. They suggest

that a 90% reduction would be appropriate.

The Court is of the opinion that sufficient evidence

supports the damages awarded by the jury with the

exception of the damages awarded to Kirks for loss of

past earnings and loss of future earning capacity. Accord-

ingly, it declines to remit the damages.

Se SONA AT LN LE A

ee -" 7

App. 57

Accordingly, Defendants’ Alternative Motion for

New Trial should be denied except that there is insuffj-

cient evidence to Support Kirks’s award for loss of past

earnings and future loss of earning capacity.

It is therefore ORDERED that the Renewed Motion

for Judgment as a Matter of Law filed by Defendants on

February 13, 1995, is declared moot.

It is FURTHER ORDERED that the Amended

Renewed Motion for Judgment as a Matter of Law filed

by Defendants on February 14, 1995, is denied in part.

It is FURTHER ORDERED that the Motion for New

Trial in the Alternative to their Renewed Motion for

Judgment as a Matter of Law filed by Defendants on

February 14, 1995, is denied in part.

Signed this 30th day of March 1995.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge

dic rahiaahalieele

op aia Oe Fy

DP RAE ba Sor

APPENDIX O

App. 58

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD KIRKS,

et al.,

Plaintiffs,

. No. 3:90-CV-1118-T

CITY OF DALLAS, TEXAS,

et al.,

Defendants.

ORDER GRANTING IN PART PLAINTIFFS’

MOTION TO AMEND JUDGMENT

AND

GRANTING IN PART PLAINTIFFS’

MOTION FOR ATTORNEYS’ FEES AND COSTS

(Filed Mar. 31, 1995)

Before the Court are Plaintiffs’ Motion to Amend

Judgment and Motion for Attorneys’ Fees and Costs. The

motions are opposed. After consideration of the motions,

responses, and replies, the Court is of the opinion that the

motions should be granted in part.

Plaintiffs move the Court to amend the final judg-

ment in this case to include an award for prejudgment

interest on their compensatory damages under 42 U.S.C.

§ 1983 and under the Texas Whistleblower’s Statute. They

next request that the post-judgment interest rate be

changed from the federal rate to the state rate. They last

App. 59

request that they be awarded reasonable attorneys’ fees

and costs.

Defendants respond that federal and state law pre-

clude an award of prejudgment interest. They further

respond that federal law dictates the amount of post-

judgment interest to be awarded in this case. They last

respond that plaintiffs’ request for attorneys’ fees and

costs is excessive and should be reduced.

The Court is of the opinion that Plaintiffs are not

entitled to prejudgment interest in this case and the fed-

eral post-judgment rate of interest is the correct interest

rate. The Court is further of the opinion that Plaintiffs are

entitled to an award of attorneys’ fees and costs incurred

as a result of this action and have satisfied the factors set

forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974).

Plaintiffs contend they have incurred legal fees in the

amount of $146,365. Plaintiffs’ counsel, Douglas Larson

and Russell Daniels, submitted affidavits regarding

expenses and attorneys’ fees. They attest that a total of

692.60 hours were spent on this case and specified the

amount of time spent by each attorney. They further

divided their time on the number of hours spent in and

out of the courtroom and time spent by Daniels as a law

clerk and as an attorney. Larson and Daniels further

attest that the hourly billing rates for attorneys involved

in this matter range from $75 to $300. They contend that

the case was novel, interesting, and complex. Because of

this, they believe the requisite skill to properly perform

the legal services in this case was high. They further state

that they were precluded from other employment due to

ee ee

App. 60

their work in this action and that there were several

undesirable aspects of this litigation. They last contend

that a contingency enhancement should be made in this

case in the amount of $560,266.66.

Edward Cloutman Ill, an attorney in Dallas, submit-

ted an affidavit as to the customary range of billing rates

in the Dallas area. He asserts that the range of billing

rates sought in this matter is reasonable and customary in

the Dallas area.

Defendants contend that the Prevailing hourly mar-

ket rate in the Dallas legal community for similar services

by lawyers of reasonably comparable skills, experience,

and reputation to that of Larson and Daniels is $225 and

$125 respectively. Defendants further contend that Plain-

tiffs are not entitled to an enhancement. They also argue

that the attorneys’ fees should be reduced because Plain-

tiffs did not amend their State court petition to add a

§ 1983 claim, entitling Plaintiffs to an award of attorneys’

fees, until a year after their state court petition was filed.

They maintain that, in that first year of litigation,

$37,732.50 in attorneys’ fees were incurred.

After examination of the time records provided by

Plaintiffs, the Court is of the opinion that 692.60 hours is

a reasonable amount of time spent in this case. The Court

is further of the opinion that due to the nature of this case

the hourly rates of $250 for Larson, $125 for Daniels as an

attorney, and $75 for Daniels as a law clerk are reason-

able. The time records reflect that Larson spent 540.20

hours on the case while Daniels spent 10.35 hours as a

law clerk and 142.05 hours as an attorney. The Court sees

no reason to award higher attorneys’ fees for courtroom

App. 61

activities or to enhance the attorneys’ fees award due to

Plaintiffs’ contingency agreement with their attorneys.

Additionally, Plaintiffs’ award should not be reduced by

$37,732.50, because Plaintiffs are entitled to attorneys’

fees under their state law claims as well as their federal

claims. See Tex. Rev. Crv. Stat. ANN. art. 6252-16a. Based

on the hours spent in this case and the respective hourly

billing rates Plaintiffs are entitled to an award of attor-

neys’ fees in the amount of $153,582.50. However, Plain-

tiffs’ counsel only billed for $146,365 for attorneys’ fees.

The Court will not award an amount higher than that

requested. Accordingly, Defendants Rollins, Hatler, and

the City of Dallas are jointly and severally liable for

Plaintiffs’ attorneys’ fees in the amount of $146,365.

Plaintiffs are also entitled to recover their expenses

incurred in this action. They seek $7,105.15. Defendants

argue that Plaintiffs should not be entitled to expenses

related to the depositions of individuals relevant only to

Plaintiffs’ wiretap litigation. Plaintiffs respond that the

parties entered into an agreement that discovery in both

the wiretap and whistleblower lawsuits would apply to

both lawsuits.

After examination of the request for expenses, the

Court is of the opinion that $7,105.15 is a reasonable

amount in light of the parties’ discovery agreement.

Therefore, Defendants Rollins, Hatler, and the City of

Dallas are jointly and severally iiable for Plaintiffs’

expenses related to this action in the amount of $7,105.15.

It is therefore ORDERED that the Motion to Amend

Judgment filed by Plaintiffs on February 10, 1995, is

granted in part.

App. 62

It is FURTHER ORDERED that the Motion for Attor-

neys’ Fees and Costs filed by Plaintiffs on February 14,

1995, is granted in part, the Final Judgment will be

amended accordingly.

Signed this 30th day of March 1995.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge

APPENDIX P

1 ital ll

App. 63

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD KIRKS,

et al.,

Plaintiffs,

‘“ No. 3:90-CV-1118-T

CITY OF DALLAS, TEXAS,

et al.,

Defendants.

FINAL JUDGMENT

(Filed Jan. 31, 1995)

This action came before the Court on a jury trial on

January 3, 1995, Honorable Robert B. Maloney, presiding,

and ‘he issues having been duly considered and a deci-

sion having been rendered.

It is ORDERED and ADJUDGED that on Plaintiff

Kirks’s claims pursuant to 42 U.S.C. § 1983, judgment is

entered in Kirks’s favor and against Defendants Rollins,

Hatler, and the City of Dallas, jointly and severally, in the

amount of $75,000 for mental anguish, $80,000 for loss of

past earnings, and $675,000 for loss of earning capacity in

the future.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiff Forsyth’s claims pursuant to 42 U.S.C. § 1983,

App. 64

judgment is entered in Forsyth’s favor and against Defen-

dants Rollins, Hatler, and the City of Dallas, jointly and

severally, in the amount of $100,000 for mental anguish.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment

is entered in Plaintiffs’ favor and against Defendant

Rollins in the amount of $125,000 for exemplary damages.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment

is entered in Plaintiffs’ favor and against Defendant

Hatler in the amount of $125,000 for exemplary damages.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment

is entered in Plaintiffs’ favor and against Defendant City

of Dallas in the amount of $125,000 for exemplary dam-

ages.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiff Kirks’s claims pursuant to the Texas Whis-

tleblower Act, judgment is entered in Kirks’s favor and

against Defendant City of Dallas in the amount of $75,000

for mental anguish, $80,000 for loss of past earnings, and

$675,000 for loss of earning capacity in the future. How-

ever, these damages may only be recovered by Plaintiff

Kirks in the event that he is unable to recover these same

damages for his claims brought pursuant to 42 U.S.C.

§ 1983.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiff Forsyth’s claims pursuant to the Texas Whis-

tleblower Act, judgment is entered in Forsyth’s favor and

against Defendant City of Dallas in the amount of

App. 65

$100,000 for mental anguish. However, these damages

may only be recovered by Plaintiff Forsyth in the event

that she is unable to recover these same damages for her

claims brought pursuant to 42 U.S.C. § 1983.

It is FURTHER ORDERED and ADJUDGED that on

Plaintiffs’ claims pursuant to the Texas Whistleblower

Act, judgment is entered in Plaintiffs’ favor and against

Defendant City of Dallas in the amount of $750,000 for

exemplary damages.

It is FURTHER ORDERED and ADJUDGED that

Plaintiffs Kirks and Forsyth take nothing against Defen-

dant Vines.

It is FURTHER ORDERED and ADJUDGED that

Plaintiffs receive Post-judgment interest at the rate of

7.34% per year from the date of entry of judgment until

Paid on the total of the above-listed amounts.

It is FURTHER ORDERED and ADJUDGED that all

relief not specifically granted herein is denied.

Signed this 31st day of January 1995.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge

Pane A Pt aot

APPENDIX Q

App. 66

19 F.3d 1527 (5th Cir. 1994)

Jan FORSYTH, et al., Plaintiffs-Appellants,

John Holman BARR, et al., Defendants,

Mack VINES, Dwight Walker, Willard Rollins,

Defendants-Appellees,

Vv.

CITY OF DALLAS, TEXAS,

Defendant-Appellee-Appellant.

No. 93-1052.

United States Court of Appeals,

Fifth Circuit.

April 20, 1994.

Undercover police officers and informants brought

action under Federal Wiretap Act against city and three

of its police officers. The United States District Court for

the Northern District of Texas, Robert B. Maloney, J.,

entered summary judgment for city and officers, and

undercover officers and informants appealed. The Court

of Appeals, Barksdale, Circuit Judge, held that: (1) under-

cover officers and informants did not establish that city

and officers intentionally intercepted their telephone con-

versations; (2) city’s and police officers’ use and dis-

closure of information from illegally intercepted

telephone communications in conducting preliminary

internal affairs investigation of undercover officers, was

authorized by Federal Wiretap Act; and (3) district court

could disqualify city attorney from representing defen-

dant police officer.

Affirmed.

App. 67

Douglas R. Larson, Mesquite, TX, for Forsyth &

Kirks.

Edward B. Cloutman, III, Dallas, TX, for Bruton &

Bruton.

Bill Boyd, Boyd, Veigel & Hance, McKinney, TX, for

Vines.

Fritz J. Aldrine, II, Asst. City Atty., Katherine Knight,

Kathleen Finck, Craig Hopkins, Dallas, TX, for Walker,

Rollins and City of Dallas.

Appeal from the United States District Court for the

Northern District of Texas.

Before WISDOM, BARKSDALE, and EMILIO M.

GARZA, Circuit Judges.

BARKSDALE, Circuit Judge:

At issue is a summary judgment awarded the appel-

lees (City of Dallas and three of its police officers) on the

appellants’ claims under the Federal Wiretap Act, 18 !

U.S.C. §§ 2510-2521: (1) for interception by a third person

(appellants claim conspiracy) of the appellants’ telephone

conversations, when two of the appellants were police

officers involved in an undercover operation; and (2) for

the appellees’ disclosure and use of the contents of those

intercepted conversations for a police internal affairs

investigation, conducted after that information was con-

veyed to the police as part of the bases for charges

against one of the appellants (an officer).

The appellees deny that they were involved in the

interception of the communications, but they did disclose

App. 68

and use the information in their investigation. In the final

analysis, the summary judgment hinges on whether the

disclosure and use were permitted by the Act, it being

undisputed that they were “appropriate to the proper

performance of the [appellee officers’) official duties”, as

provided for in § 2517(1) and (2). The linchpin to that

question, assuming that the third person illegally inter-

cepted the information, is whether the appellee officers’

“obtain[ing]” that information from that person was “by

any means authorized by” the Act, as found in § 2517(1)

and (2). The meaning of this phrase is far from clear; but

the legislative history sanctioning such disclosure and

use of illegally intercepted information is crystal clear.

The persons whose conversations were intercepted -

Jan Forsyth and Richard Kirks (the officers), and Susan

and Charles Bruton (the latter being an informant) -

appeal from the judgment for the City, Dwight Walker,

Willard Rollins, and Mack Vines. The City appeals being

required to provide independent counsel for Vines. We

AFFIRM.

Dallas police officers Forsyth and Kirks, two of the

four appellants, were assigned to the Intelligence Divi-

sion. In December 1987, under the supervision of appel-

lee Rollins of that division, they began an undercover

investigation, with appellant Charles Bruton acting as an

informant. His wife, appellant Susan Bruton, had been an

informant Previously for Forsyth. The investigation was

conducted, in part, from the Brutons’ home in Dallas,

including over their telephone.

App. 69

While the undercover investigation was ongoing,

appellant Forsyth was telephoned in March 1988 by John

Barr, a Dallas attorney,! about an unrelated civil case

involving appellant Charles Bruton (the informant) and

Barr’s client, George Grogan.? The appellants alleged in

their complaint that Grogan had hired Bruton to illegally

dispose of toxic chemicals; that he had reported the ille-

gal disposal, causing state environmental authorities to

initiate an investigation of Grogan; that Barr sought For-

syth’s assistance in having Bruton recant his illegal dis-

posal charges; and that Forsyth refused to become

involved.

The appellants further alleged in their complaint

that, in June 1988, Barr and Grogan contacted the Dul-

worths, neighbors of both Grogan and the Brutons,? and

asked for their assistance either in discrediting Charles

Bruton, Forsyth, and Kirks, or in finding a way to force

Bruton to recant his waste disposal charges; that the

Dulworths held a grudge against Bruton because he had

testified in a criminal trial against Gary Dulworth; that

the Dulworths arranged to route the Brutons’ telephone

line into a previously dormant line at the Dulworths’

1 Barr, who described himself as a “cop groupie”,

occasionally accompanied Dallas police officers in the execution

of warrants.

2 Grogan, a businessman and former member of the Dallas

Planning and Zoning Commission, owned property next to the

Brutons’ home.

3 Homer and Joyce Dulworth, and their son, Gary, resided

across the street from the Brutons.

App. 70

home, so that, on an extension in their home, the Dul-

worths could listen to the Brutons’ telephone conversa-

tions; and that Barr, Grogan, and the Dulworths

monitored and recorded the Brutons’ calls, in violation of

the Wiretap Act.

On September 22, 1988, Grogan, Barr, and one of

Barr’s law partners met with appellee Walker, who was in

charge of the police Internal Affairs Division, and

charged that Forsyth had engaged in criminal and admin-

istrative misconduct during the undercover investiga-

tion.* Walker was told that, over one of her telephones,

Mrs. Dulworth had overheard conversations between

Charles Bruton and Forsyth; that Mrs. Dulworth thought

that the telephone had been disconnected, but that it had

suddenly become operable; and that she had told Grogan

that she believed that her telephone line had become

crossed with the Brutons’. Barr told Walker that a wiretap

was not involved, and Walker believed that the telephone

had become a party line accidentally.

At the meeting, Barr made very serious charges

against Forsyth and the Brutons.5 At the conclusion of the

* The appellants alleged that Barr used the illegally

intercepted conversations to punish Forsyth and Kirks for not

toxic waste disposal.

° On September 22, Barr submitted an affidavit

summarizing his charges against Forsyth. Also at the meeting

that same day, Barr told Walker that he and Grogan believed

that Forsyth was making arrangements for the dismissal of

App. 71

meeting, Walker was not certain which charges arose out

of the telephone eavesdropping and which came from

other sources. At least some of the information was

obtained by Barr, his law partner, and Grogan from

sources other than the intercepted conversations. Walker

assumed that information about a personal trip by For-

syth and Charles Bruton was overheard. See note 5, supra.

The iniormation about Charles Bruton participating in a

drug deal was overheard also. See note 5.

Walker decided to conduct a preliminary internal

affairs investigation of the charges. Such investigations

are conducted to ensure the integrity of the police depart-

ment. They are not considered formal complaints; and,

together; that Forsyth possibly had covered up, or arranged for

charges to be dropped regarding, a murder-for-hire scheme in

which Charles and Susan Bruton tried to kill her ex-husband;

that Forsyth had misrepresented to a state judge the nature of

Charles Bruton’s work as an informant for her; that Charles

Bruton was to receive “half the dope” in a narcotics deal; and

that Forsyth knew that Charles Bruton had convinced a Darrell

Smallwood to burglarize Grogan’s house, but had failed to see

that charges were filed against either of them. As to the

burglary, Barr told Walker that he learned about it from visiting

Smallwood in jail.

Walker was also informed that Grogan had understood

from prior conversations with Mrs. Dulworth that the City had

made a deal with Charles Bruton to allow him to illegally mine

Grogan’s property; and that Mrs. Dulworth had told Grogan

that she overheard on her telephone: that some environmental

matters needed handling, that Charles Bruton was calling for

“Jan” (Forsyth) and that Jan was the only one who could control

Bruton, that there were dead bodies and dead dogs on the

property (unclear whether Grogan’s or Brutons’), and that

Charles Bruton was being protected by Dallas police officers.

App. 72

unless a violation is identified, they are not reflected in

the personnel record of the investigated employee.

On either September 22 or 23, Walker informed

appellee Rollins (the supervisor of Forsyth and Kirks’

undercover investigation) about the meeting with Barr

and the charges against Forsyth. In turn, on either Sep-

tember 22 or 23, Rollins informed Lieutenant Lybrand

(one of Forsyth and Kirks’ Supervisors) about the

charges. Lybrand advised Rollins that the police depart-

ment should investigate whether a wiretap was in place;

Rollins responded that any investigation should be per-

formed by the FBI.

With Lybrand present, Rollins met on September 23

with Kirks and Forsyth, informed Forsyth that a com-

plaint had been filed against her, and instructed them not

to discuss police business over the Brutons’ telephone or

to tell anyone that he had given them that order. Kirks

and Forsyth left the meeting believing that there was a

“legal wiretap” on the Brutons’ line, although neither

Rollins n

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