Petition for Writ of Certiorari — Stotter v. University of Texas at San Antonio

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Supreme Court, U.S.

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Pure at AUG 10 2010

OY, OFFICE OF THE CLERK

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Dupreme Court of the United States

Philip SL. Stotter, Petitioner

AQ.

Unirersity of Sexas at San Gntonio and

Guy Bailey, Respondents

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Dtates Li « att of Appeato for the Sith Circuit

Petition for Wait of Certiorari

Regina Bacon Criswell

Carnage Place, P.O. Bax 1399

Helotes, Texas 78023-1399

(210) 681-7303

210) 680-3990 (facsimile)

Counsel for Petitioner

Sn She

Dupreme Court of the United Dtates

Philip L. Dtotter, Petitioner

Unirersily of Texas at Dan Gntonio ond

L c Y ofe ) C7 ° ) d ‘ ‘ ) OF, +

),, ‘J elilion for (D rit of Lf etiorwu to the United

~ > oe ) } Ci. ) ? oo

Otates Court of Cnpeals fot the Sith Circuit

Petition for Wait of Cerctiorari

Regina Bacon Criswell

Carnage Place, P.O. Bax 1399

Helotes, Texas 78023-1399

(210) 681-7303

(210) 680-3990 (facsimile)

Counsel for Petitioner

Questions Presented

1. Did Petitioner lose his federally guaranteed right

to a jury trial under the Seventh and Fourteenth

Amendments when after a jury returned a verdict in

his favor, the U.S. District Court for the Western

District of Texas granted a Rule 50 motion for

judgment as a matter of law and the U.S. Court of

Appeals for the Fifth Circuit affirmed without

conducting a review of the record evidence or

evaluating the evidence to support the jury verdict?

2. Did Petitioner lose his federally guaranteed right

to due process under the Fifth and Fourteenth

Amendments when after a jury returned a verdict in

his favor, the U.S. District Court for the Western

District of Texas granted a Rule 50(b) motion for

judgment as a matter of law on grounds not raised in

the Rule 50(a) motion and the U.S. Court of Appeals

for the Fifth Circuit affirmed without conducting a

review of the grounds to determine if Petitioner had

adequate notice?

3. In considering and ruling on a Rule 50(b) motion

are the lower courts required to treat all litigants

under the same or similar circumstances equally as

guaranteed by the Fourteenth Amendment? In

performing a de novo review of the grounds

articulated in support of a Rule 50 judgment, must a

court refer to the motions and the nature of the

notice provided in its order or decision? In ruling on a

Rule 50 motion, may a court simply state that it

conducted a de novo review of the record without

actually referring to the evidence it reviewed in its

order or decision?

TABLE OF CONTENTS

Questions Presented for Review................ i

Bee Ge Te oo a ho oo oe eee eee 11-11

TOO OF AUMEIIOPOEIOS ..... 6 ec ieee twcees o 0 lv-V

Opinions and Orders for Review.............. 1-2

Basis for Jurisdiction in this Court.............. 3

Constitutional and Statutory Provisions Involved 2-5

Statemont of the Case .. 0... ccc ccc cscs scese §-11

Argument Supporting Allowance of the Writ

1. This Court’s Superintendence of the Federal

Judiciary to Insure that It Safeguards’ the

Seventh Amendment’s Guarantee of a Right to

Jury Trial to Civil Rights Litigants in Ruling

on Rule 5G Motions for Judgment as a Matter

of Law Warrants the Granting of this Petition. .11-15

2. This Court’s Superintendence of the Federal

Judiciary to Insure that It Safeguards the Federal

Constitutional Right to Due Process to Civil Rights

Plaintiffs Warrants the Granting of this Petition... ..

Ee re PE ee ee ee ee ye ee 15-19

3. This Court’s Superintendence of the Federal

Judiciary to Insure that It Uniformly Applies the

Correct Standard of Review in Considering a Rule 50

Motion for Judgment as a Matter of Law After a Jury

Verdict in Favor of a Civil Rights Plaintiff. . 20-23

Conclusion ......... Sad Sere tere eae ae cae een ee

APPENDIX

The unpublished decision of the Court of Appeals for

the Fifth Cireuit in PArip L. Stotter, PAD v.

University of Texas at San Antonio, et al, C.A. No.

0989-50415, dated April S$, Z010 ....... 0.0... sce ees 1-4

The Order denying Petition for Rehearing in PAz/ip

L. Stotter, PAD v. University of Texas at San

Antonio, et al, C.A. No. 09-50415, dated May 12,

i) | ee ne er ea ee eee A er eee be Lor 0-6

The district court’s order in Philip L. Stotter, PhD v.

University of Texas at San Antonio, et al, D.C. No.

01-CV-434-OLG, dated April 14, 2009, granting

Defendants’ Rule 50(b) Motion for Judgment as a

ee ys ba ee ee ee ; Fe

Record Excerpts of Defendants’ Rule 50(a) Motion for

Judgment as a Matter of Law made at the close of

Plaintiffs evidence in FPaAriip L. Stotter, PAD v.

University of Texas at San Antonio, et al, D.C. No.

Oe ee os i ek ena be es 13°18

The Motion for Judgment as a Matter of Law made

after the jury’s verdict in favor of Petitioner in PAz/ip

L. Stotter, PAD v. University of Texas at San

Antonio, et al, D.C. No. 01-CV-434-OLG, dated

Pee ee. Pg ok 6 6 hk ow a ss pe oD 19-37

The pubhshed decision of the Court of Appeals for

the Fifth Circuit in PAiip L. Stotter. PhD v.

University of Texas at San Antonio, et ai, C.A. No.

06-50305, affirming in part and reversing and

PEA 1 MOTE... oc i ac i eee ewe 38-62

TABLE OF AUTHORITIES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-

ee ee ye eee Reed eee 12

Benson v. Allphin, 786 F.2d 268 (7th Cir. 1986) .. 16

Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) ...7

Carmona v. SW Airlines Co., No 08-51175 (CA5 4/10)

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 12

Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786

P38 Tee tes Car. TORR). .... 5c ccc vcecccsces 15

Mahone vy. Addicks Util. Dist., 836 F.2d 921, 929 (5th

NN ee re et eee aioe olan des 7

Matsushita Elec. Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 i... Sa 12

McLaughlin v. The Fellows Gear Shaper Co., 4

F.R.Serv. 3d 607 (3d Cir. 1986) ................ 16

Reeves v. Sanderson Plumbing Products, Inc., 530

U.8. £33, 140-101 WOO . ok. ieee 11, 1 3

Stotter v. University of Texas at San Antonio, et al:

508 F.3d 812, 822 (5th Cir. 2007) ............. 7,14

Wackman, et al v. Rubsamen, No. 08°51119 (CA5

I a ee a eee eee eee 21

TABLE OF AUTHORITIES

251 (1986) ..... BVT Prey Tee eer eee ee eee 12

Anderson v. Liberiy Lobby, Inc., 477 U.S. 242, 250-

Benson v. Allphin, 786 F.2d 268 (7th Cir. 1986)... 16

Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) ...7

Carmona v. SW Airlines Co., No 08-51175 (CA5 4/10)

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 12

Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786

Pie tae coee Cir. POBG) 6. wc ce eee 15

Mahone v. Addicks Util. Dist., 886 F.2d 921, 929 (5th

ea ee wea cua |

Matsushita Elec. Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) ................ 12

McLaughlin v. The Fellows Gear Shaper Co., 4

F.R.Serv. 3d 607 (3d Cir. 1986) ................ 16

Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 149-151 (2000)................ Li. 42. 21

Stotter v. University of Texas at San Antonio, et al;

508 F.3d 812, 822 (5th Cir. 2007)............. 7,14

Wackman, et ai v. Rubsamen, No. 08-51119 (CAS

Ne ig od sas 4a Ow kk eee RS ae.

CITATIONS OF OPINIONS and ORDERS

The unpublished decision of the Court of Appeals for

the Fifth Circuit in LPhAilip L. Stotter, PAD vy.

University of Texas at San Antonio, et al, C.A. No.

09-50415, dated April 8, 2010, affirming the district

court’s order granting Defendants Rule 50(b) Motion

for Judgment as a Matter of Law, is set forth in the

Appendix hereto (App. 1-4)

The Order denying Petition for Rehearing in PAz/rp

lL. Stotter, Phi) v. University of Texas et San

Antonio, et al, C.A. No. 09°50415, dated May 12,

2010, is set forth in the Appendix hereto (App. 5-6)

The district court’s order in PAihp L. Stotter, PhD v.

University of Texas at San Antonio, et al, D.C. No.

01-CV-434-OLG, dated April 14, 2009, granting

Defendants’ Rule 50(b) Motion for Judgment as a

Matter of Law, is set forth in the Appendix hereto

(App. 7-12)

Record Excerpts of Defendants’ Rule 50(a) Motion for

Judgment as a Matter of Law made at the close of

Plaintiffs evidence in PaAilip L. Stotter, PhD v.

University of Texas at San Antonio, et al, D.C. No.

01-CV-434-OLG, is set forth in the Appendix hereto

(App. 13-18)

The Motion for Judgment as a Matter of Law made

after the jury’s verdict in favor of Petitioner in PAilip

L. Stotter, PhD v. University of Texas at San

Antonio, et al D.C. No. 01-CV-434-OLG, dated

February 27, 2009. is set forth in the Appendix

hereto (App. 19-37)

[1}

The published decision of the Court of Appeals for

the Fifth Cirewt in Philip L. Stotter, PAD v

University of Texas at San Antonio, et al, C.A. No

06-50305, affirming in part and reversing and

remanding in part, is set forth in the Appendix

hereto (App. 38-62)

BASIS FOR JURISDICITON IN THIS COURT

The Judgment of the United States District Court of

Appeals for the Fifth Circuit affirming the District

Court's grant of Judgment as a Matter of Law

pursuant to Fed. R. Civ. Proc 50(b) was entered on

April 8, 2010. (App. 1-4)

The Order Denying Petition for Rehearing wa

entered on May 12, 2010. (App.5-6)

This Petition for Writ of Certiorari by Stotter is filed

within ninety (90) days from the date the Petition for

Rehearing was denied. 28 U.S.C. §2101(¢)

The jurisdiction of this Honorable Court is invoked

pursuant to the provisions of 28 U.S.C. §1254(1)

CONSTITUTIONAL, STATUTORY and RULE

PROVISIONS AT ISSUE

United States Constitution, Article III, Sec.1

The judicial power of the United States, shall

be vested in one Supreme Court, and in such

inferior Courts as the Congress may from time

to time establish ...

United States Constitution, Amendment V

nor shall private property be taken

public use without just compensation

United States Constitution, Amendment XIV, Sec.

No state shall make or enforce any law

which shall abridge the privileges on

immunities of citizens of the United State

nor shall any state deprive any person of life

liberty, or property, without due proce of

law

28 U.S.C. §1331

The district courts shall have original

jurisdiction of all civil actions arising under

the Constitution, law or treaties of the

LJnited States

28 U.S.C. §1343(a)(4)

(a) The district courts shall have original

jurisdiction of any civil action authorized by

law to be commenced by any person...(3)

to recover damages oO! to secure

equitable or other relief under any Act of

Congress providing for the protection — of

civil nghts

42 U.S.C. §1983

Kvery person who under color of any statute

ordinance, regulation, custom, or usage, of an‘

State or Territory or the District of Columbia.

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, and shall be hable

to the party injured in an action at law, suit in

equity, or other proper’ proceeding for

redress. ee

Federal Rules of Civil Procedure, Rule 50(a) & (b)

(a) Judgment as a Matter of Law

(1) If during a trial by jury a party has been

fully heard on an issue and there is no legally

sufficient 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 a:

matter of law 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

(2) Motions for judgment as a matter of law

may be made at any time before submission of

the case to the jury. Such a motion shall

specify the judgment sought and the law and

facus on which the moving party is entitled to

the jyudyment.

(b) Renewing Motion for Judgment After

Trial... If, for any reason, the court does not

grant a motion for judgment as a matter of law

made at the close of all the evidence, the court

is considered to nave submitted the action to

the jury subject to the court's later deciding

[4]

the legal questions raised by the motion. Th

movant may renew its request for judgment a

a matter of law by filing a motion no later than

10 days after entry of judyment In ruling on

a renewed motion, the court may: (1) if a

verdict was returned: (A) allow the judgment

to stand, (B) order a new trial, or (©) direct

entry of judyment as a matter of law

STATEMENT OF THE CASE

The Petitioner Philip L. Stotter, PhD (Stotter) was a

tenured Professor of Chemistry at the University of

Texas at San Antonio (U'TPSA) between

approximately 1976 and 2002. During the fall of

2000, Stotter was requested = by University

administrative personne! to address health and

safety concerns 1n his laboratory located at the U'TSA

campu After numerous communications between

stotter and administrative personne! regarding the

condition of his laboratory, Dr. Guy Bailey, the

Provost, sent a certified letter to Stotter on Friday

Mebruary 23, 2001 wherein Stotter was notified that

the University planned to clean his lab and that if

Stotter had personal belonging or material

ynthesized for use , or as part of an ongoiny

project, he had to make arrangements to identify

those items and materials before the clean up

commenced at 9-00 a.m. on Monday, February 26

Z001. Stotter was provided with notice of the letter

from the United States Postal Service on February

28, and received the letter on March | well after the

clean up ’ iaboratory bevan Ol) Kebruary Z0

2001

When Stotter was finally allowed tnto his laboratory.

he determined the extent of lo the removal of

literally everything of value un his lab ineluding

equipment and cnemicals that had never posed any

health or safety hazard

Stotter filed a lawsuit in state court in May 200]

asserting federal due process violations in connection

with the loss of personal property, and his personal

professional and/or propmetary propertly right lI)

non inventoried and expendable laborator

equipment and supplhie fine chemical research

synthetu chemical and botanical research

notebook pectrometri data per onal and research

data stored on the University’s computer hard drive

and on disks and diskettes locuted at the University

Stotter clanmed that his) procedural due proce

nghts were violated when lhe vas deprived of hi

property during the cleancup of his lab without first

giving him suffiqent notice and an opportunity to

retrieve at. The University defendant removed the

suit to the United State Distrset Court for th

Western District of Texa

Thereatter, the Unis ity defendants tiled a motion

lo? UummMmary judyement The district court granted

the motion, but in so doing conceded that thi

hebruary 23, 2001 notice letter from Dr. Barley wa

inpsulfiqgient to pive Stotter sufficient time to remove

any personal ms from his lab. With respect to

Stotte) due proce claim the distmet court

concluded that he could not pursue a federal du

proce claim because 1) he had an adequate

deprivation remedy 1.4 i tate law conve!

and 2) he had not adequately identified any items or

materials in which he had a protected property right.

Stotter appealed the dismissal of his suit to the

United States Court of Appeals for the Fifth Circuit.

In a published decision, the appeals court reversed

and remanded in part, concluding that Stotter’s due

process claims were not contingent on the

unavallability of post-deprivation remedies and in

considering the evidence in a hght most favorable to

Stotter, he had sufficiently identified property in

which he claimed protected property rights. See

Stotter v. University of Texas at San Antonio, et al:

508 F.3d 812, 822 (5th Cir. 2007).

Regarding the district court’s conclusion that Stotter

had failed to identify any particular item that was

removed from his lab in which he had a sufficient

property interest, the appeals court noted that

property interests protected by the due process

clause include at least ownership of real estate,

chattels, and money. See id citing Bd. of Regents v.

Roth, 408 U.S. 564, 572 (1972) and Mahone vy.

Addicks Util. Dist., 836 F.2d 921, 929 (5th Cir. 1988).

The appeals court further noted that in construing

Stotter’s affidavit testimony in a light most favorable

to him, a reasonable jury could conclude that Stotter

had a property interest in items including “... book

cases, storage cabinets, a chemical library, personal]

journals, notebooks, documentation that reflected his

research and work generated during his tenure at

UTSA, and many non-inventoried chemicals and

related materials not purchased by UTSA or with

funds belonging to UTSA.” See Stotter 812 F.3d at

822.

After remand, the case proceeded to trial on

February 9, 2009. At issue was whether Stotter had

adequate notice of UTSA’s intention to clean his

laboratory and whether he had a property right in

any of the items or material removed from his lab.

During the trial, Stotter presented evidence of his

property rights in various items in his lab including

documented research materials, a chemical hbrary,

and glassware and equipment. Stotter established

his property rights in those items under two theories.

1) UTSA’s intellectual property policies which

granted ownership rights to faculty in “scholarly or

educational” materials they authored and_ 2)

mutually exphcit understandings between Stotter

and UT officials at both the University of Texas at

Austin and UTSA.

At the close of Stotter’s evidence the University

defendants made an oral motion for judgment

pursuant to Fed. R. Civ. Proc. 50(a). The grounds for

the Rule 50(a) motion were threefold: 1) Stotter had

not carried his burden to demonstrate what

particular items he brought with him co UTSA from

the University of Texas at Austin and the University

paid to transport those items; (App. 16) 2) Stotter’s

research notebooks belonged to the University

because they contained information generated under

grants, donations, gifts, whatever, however funded,

the funds were the University’s since they were

generated on UTSA_ property, using UTSA’s

electricity, water, insurance, all of those things:

(App. 16) and 3) Stotter hadn't offered evidence that

he purchased any of those things with his own funds.

(App. 16)

[3]

The trial court denied the Rule 50(a) motion and the

case was submitted to the jury. In relevant part the

jury was instructed as follows:

“...property interests are often expressly

created by state statutes or regulations,

although they can also arise from written or

unwritten state or local government policies or

from mutually — explicit understandings

between a government employer such as

UTSA, and its employee, Dr. Stotter.”

A unanimous jury returned a verdict in favor of

Stotter finding 1) that he was not provided with

adequate notice of the clean-up of his lab and 2) that

he had a property right in items and materials that

UTSA removed from his lab. The jury awarded

Stotter monetary damages for his documented

research materials, but not for his chemical hbrary

or any glassware or equipment.

After the jury verdict in Stotter’s favor, the

University defendants timely filed a written motion

for judgment pursuant to Fed. R. Civ. Proc. 50(b).

(App.19-37) However, the Rule 50(b) motion included

grounds and law not raised in the earlier Rule 50(a)

motion as required. The grounds for the Rule 50(b)

motion were 1) that Stotter had failed to establish

that anyone who had given him items and materials

in his lab had authority to make a gift: (App. 22) and

2) that Stotter had failed to prove the intellectual

property policics granted him a property interest in

the items or materials at issue. (App.22-29) In

support of these new grounds the University

[9]

Defendants cited to other University’s intellectual

property policies and raised new arguments and

legal authority not cited or relied on in their oral

Rule 50(a) motion.

Stotter filed a written response and objected to the

newly asserted grounds and authority, and any

reliance on other University’s policies. On April 12,

2009, the U.S. District Judge, Garcia, O., granted the

University Defendants’ Rule 50(b) motion. (App.7-12)

Judge Garcia observed that under the University’s

intellectual property policies Stotter’s documented

research belonged to the University unless he

showed they were “scholarly or educational”

material. Without conducting any evidentiary review

of the evidence to support the jury verdict, Judge

Garcia concluded “the contents of the notebooks

included documentation of Dr. Stotter’s laboratory

research. This is so because [he] testified that he lost

a proffered research contract due to his inability to

utilize his documented research, and that he was

unable to utilize the research contained in the

notebooks to publish articles related to that

research.” (App. 11)

In the order granting the Rule 50(b) motion, Judge

Garcia made erroneous evidentiary conclusions not

supported by the record evidence and never

considered or addressed Stotter’s alternate theory

that he acquired property mghts through mutually

exphcit understandings between himself and UT

officials.

On April 8, 2010, the Court of Appeals for the Fifth

Circuit affirmed the District Court’s order granting

judgment as a matter of law to the University

[10]

Defendants in an unpublished opinion’ without

conducting any de novo review of the evidence which

would support the jury verdict. (App. 1-4) Stotter

now brings to this Court his petition seeking a writ of

certiorari to the United States Court of Appeals for

the Fifth Cireuit.

ARGUMENT SUPPORTING

ALLOWANCE of the WRIT

1. This Court’s Superintendence of the Federal

Judiciary to Insure that It Safeguards the Seventh

Amendment’s Guarantee of a Right to Jury Trial to

Civil Litigants in Ruling on Rule 50 Motions for

Judgment as a Matter of Law Warrants the Granting

of this Petition.

In Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 149-151 (2000), this Court noted that the

Courts of Appeals had _= articulated’ different

formulations as to what evidence a court is to

consider in ruling on a Rule 50 motion; some courts

limited review to that evidence favorable to the non

movant while most reviewed the entire record,

drawing all reasonable inferences in favor of the non-

moving party. In discussing these approaches, this

Court noted a distinction between what evidence a

court must give credence to and what evidence a

court must review. Because the standard for

granting a Rule 56 motion for summary judgment

“mirrors” the standard for granting a Rule 50 motion

for judgment as a matter of law, and the inquiry

under both is the same, this Court concluded the

standard of review is the same for both. In

considering a motion for judgment as a matter of

law, a court should review all of the evidence in the

[11]

record. See id at 150 citing Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250-251 (1986): and Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986).

However, in conducting its review of all the evidence

in the record, a court is required to draw all

reasonable inferences in favor of the nonmovinyg

party and it may not make credibility determinations

or weigh the evidence. "Credibility determinations,

the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury

functions, not those of a judge ... The evidence of the

nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor". See Liberty

Lobby, Supra at 255.

In the present case, in considering the post verdict

Rule 50 motion, District Judge, Garcia, O. did not

review all the evidence in the record, he did not draw

all reasonable inferences in favor of Stotter, he did

not take all of Stotter’s evidence as true, and he did

not disregard all evidence favorable to the University

Defendants that the jury was not required to believe.

(App.7-12) Instead, as reflected in the Order granting

the Rule 50 motion, Judge Garcia improperly

weighed the evidence and/or made credibility

determinations regarding witness testimony.

(App.11) Finally, Judge Garcia only addressed one of

the theories Stotter relied on to establish his

property rights; i.e. his asserted ownership under

UTSA’s intellectual property policies. Judge Garcia

never considered or evaluated the record evidence to

determine if the jury verdict was supported by

[12]

sufficient evidence that Stotter had property rights

to items and materials 1n his lab based on mutually

explicit understandings between himself and UT

officials. (App. 7-12) Stotter’s testimony regarding his

mutually explicit understandings with UT officials

was uncontroverted.

The appeals court also failed to apply the correct

standard of review; the unpublished panel decision

included no evidentiary review whatsoever. (App. 1-

4). Instead, the minimal opinion stated in relevant

part as follows:

“Likewise, our de novo review of the district

court's ruling on Bailey’s JMOL motion satisfies

us that it was providently granted. Stotter

failed to present sufficient evidence to establish

that he had a protectable property interest in

the subject notebooks. Accordingly, no

reasonable jury could have found the presence

of such an interest when, as here, the law does

not allow it. Stotter’s argument that his

notebooks fall under the “scholarly — or

educational materials” exception in UTSA’s IP

policy is not borne out by the evidence. That

exception would apply only if the materials at

issue were published or copyrighted or

“copyrightable,” yet Stotter’s evidence was not

sufficient to demonstrate that the notebooks in

question contained material other’ than

research data. Accordingly, the district court's

JMOL reversing the jury award to Stotter is

AFFIRMED.” (App. 4)

Although the decision states that a de novo review of

the district court’s ruling was conducted, the decision

does not state, and includes no indication, that the

court conducted a review of the entire record under

the applicable standard; it did not draw all

reasonable inferences in favor of Stotter, it did not

take all of Stotter’s evidence as true, and it did not

disregard all evidence favorable to the University

Defendants that the jury was not required to believe.

And, just as the trial court failed to address both of

Stotter’s theories regarding the source of his property

rights, the appeals court also failed to consider or

evaluate the record evidence to determine if the jury

verdict was supported under Stotter’s claim to

property rights based on mutually — explicit

understandings between himself and UT officials.

(App. 1-4) Stotter petitioned the Panel for rehearing

and specifically brought this failure to address the

alternative theory to ‘the attention of the appeals

court citing to the prior published opinion in Stotter

v. University of Texas at San Antonio, et al; 508 F.3d

812 (5th Cir. 2007) which specifically found that a

reasonable jury could conclude that Stotter had

property rights in items and materials in his lab.

Stotter’s petition for rehearing was summarily

denied without comment. (App. 51-52)

As a consequence of the failure of the trial court and

the court of appeals to conduct a review of all the

record evidence, and to consider the evidence in a

light most favorable to Stotter, the courts invaded

the province of the jury and thereby denied Stotter

his Seventh Amendment right to a jury trial. In a

case such as this, when the lower federal courts have

[14]

not conducted a proper review of all the evidence, in

a light most favorable to the jury’s verdict, then the

reversal of the jury’s verdict is a violation of the

Seventh Amendment and is_ the kind of

constitutional error that this Court should correct.

The lower courts failed to apply the correct standard

of review in granting and affirming the Rule 50(b)

motion for judgment as a matter of law against

Stotter. This fundamental error invokes this Court’s

duty of superintendence of the federal judiciary to

insure that courts apply the correct standard of

review in ruling on Rule 50 motions to prevent the

unconstitutional denial of the Seventh Amendment

right to a jury trial.

2. This Court’s Superintendence of the Federal

Judiciary to Insure that It Safeguards the Federal

Constitutional Right to Due Process to Civil Rights

Plaintiffs Warrants the Granting of this Petition.

It is well settled that a Rule 50(a)(2) motion made at

the close of the evidence must specify the law and

facts on which the movant is entitled to judgment.

The purpose of this requirement is to ensure the

responding party has an opportunity to cure any

deficiency in his proof which might have been

overlooked until called to the party's attention. See

Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786

‘2d 1342 (9th Cir. 1986) ("If the moving party is

then permitted to make a later attack on the

evidence through = a motion for judgment

notwithstanding the verdict or an appeal, the

opposing party may be prejudiced by having lost the

opportunity to present additional evidence before the

[15]

case was submitted to the jury"); Benson v. Allphin,

786 F.2d 268 (7th Cir. 1986) ("the motion for directed

verdict at the close of all the evidence provides the

nonmovant an opportunity to do what he can to

remedy any deficiency in his” case...); and

McLaughlin v. The Fellows Gear Shaper Co., 4

F.R.Serv. 3d 607 (3d Cir. 1986) (per Adams, J.,

dissenting: "This Rule serves important practical

purposes in ensuring that neither party is precluded

from presenting the most persuasive case possible

and-in preventing unfair surprise after a matter has

been submitted to the jury")

In renewing a motion for judgment as a matter of

law under Rule 50(b) after a jury verdict, the movant

cannot offer new or different law and facts on which

the judgment could be rendered as this would defeat

the intent and purpose of providing the nonmoving

party with notice and an opportunity to cure defects

in evidence.

In this case, Stotter understood it was his burden to

establish that he had property rights in items and

materials in his lab. Stotter’s claim to property rights

In certain items and materials was twofold: his

documented research was “scholarly or educational”

material which he authored and was _ therefore

exempt from any claim of ownership by the Board of

Regents; and he was granted property rights in

certain items and materials pursuant to mutually

explicit understandings between himself and UT

officials. ‘To establish his claim to property rights

under the IP policies, Stotter understood, and the

trial court agreed, (App. 11) that it was his burden to

establish that his documented research materials

[16]

could be considered “scholarly or educational’

material. To satisfy this burden, Stotter offered the

policies into evidence and questioned various

witnesses about the policies. To establish his claim to

property rights under his’ mutually’ explicit

understandings with UT officials, Stotter testified

regarding his conversations with officials at UT

Austin and at UTSA about his ownership of items

and materials that he would transfer to UTSA.

At the close of Stotter’s evidence, the University

Defendants made an oral motion for JMOL on

essentially three grounds; 1) Stotter did not meet his

burden of proof to show what particular items he

brought with him to UTSA from UT' Austin, (App. 16)

2) Stotter’s research notebooks belonged to the

University because they contained information

generated under grants, donations, gifts, whatever,

however funded, the funds were the Universitys

since they were generated on lTSA property, using

UTSA’s electricity, water, insurance, all of those

things, (App. 16) and 3%) Stotter hadn't offered

evidence that he purchased any of those things with

his own funds. (App. 16)

After the jury verdict in favor of Stotter, the

University made a written motion for JMOL on the

two new grounds; 1) Stotter had not established that

any person who gave him anything had authority to

make a gift; and 2) Stotter had not established his

property rights under the IP policies. (App. 22°29)

7-12) and in the Court of Appeals decision (App. 1-4)

that the basis for granting judgment as a matter of

law was on the second ground raised in the post trial]

[17]

motion; that Stotter had not established his property

riyhts under the IP poliaes. Despite objection by

Stotter that the University Defendants had not

raised this ground at the close of the evidence

neither lower court conducted a_ review of the

grounds to determine whether Stotter had adequate

notice of this basis as a vround for judgment

The District Court addressed Stotter’s objection to

newly cited iP? policies ltl a footnote, bul did not

otherwise address whether the grounds presented

after trial had been articulated in the motion for

judgment on the record before submitting the case to

the jury. (App 10) The Court of Appeals addressed

this issue as follows

“As a threshold matter, Stotter argues that

the district court erred in considering

tailey’s Rule 500b) motion because it 0

differed in content from his earher Rule 50a)

motions as to constitute waive! After

hearing oral argument by able counsel fo:

both parties, considering the applicable law

as presented in the parties bref and

reVviewlnf the record or appeal We are

satished that Bailey's Rule 50(b) motion wa

sufficiently reflective of his Rule 50(a) motion

as to avoid waiver.” (App. 3-4)

In fact, the vrounds as stated on the record at the

close of Stotter’s evidence do not mention the IP

policies in any respect. Nor did the University

Defendants argue that Stotter had failed to establish

that the contents of his documented research

included “copyrightable” expression. (App. 13°18)

This yround was argued for the first time in the post

13}

}

verdict hui Cb) motor pane A Try iS]

vranting the motion. (App.22°29)

The District Court concluded 3 \ ned Stottes

gdocumented research because | Ontalne

aocumentation of ni researcn but did not evaluate

any evidence to determine Whether the iry could

find hi research wa cholarly or educational

material. CA pp. | |) Similarlv. the Court of App 7

affirmed the JMOL because no jury could beleve hy

documented research contained | nvntabl

expr ion. (App. 4)

byetore the case Was ubmitted to the ry tottel!

VAS not on notice that hi evidence was deficient

regarding the contents of his documented researc

material or that his burden was to prove that hi

documented research contained opyrivhtabl

expression as opposed to cnolarly or educationa

material as the trial court noted. (App. 14-18)

AN a litigant in the federal court totter |

constitutional rivht to due proc of law

fruaranteed by ine hifth md hourteenth

Amendment to the federal Constitution \t

minimum due proce of law in the context of civi

nights htiation impose prequirement that the rule

of procedure appheablh to litigant he fairly apphed

and that the lower federal court ensure that each

party 31s guaranteed due proce of law. ‘This 1

v pecially on the context of taking a jury verdict

from a @ivil rights litigant under ule y without

periorming thorough revicw ()] Lr ! ind

articulated for th judyment to ensure that

Licce ful litivant Wa piven notice und thie

opportunits > Cir eyvIdentiar dehepwey ‘ Deore

) cf req ré Tryst ) r yee ria ( irl ('W i]

eat iWoand tact listerad 4 Rule SOGad &

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before the eoWwaA britted to the

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3 'his Court's Superintendence of the Federal!

Judiciary to Insure that It Uniformly Apples the

Correct Standard of Review in Considering a Rule 50

Motion for Judgment as a Matter of Law After a Jury

Verdict in Favor of a Civil Rights Plaintiff.

The lower courts were required to conduct a de novo

review of all the evidence in the record to determine

if there was sufficient evidence to support the jury’s

verdict on either or both of the theories of the source

of Stotter’s property rights. Neither the District

Court order granting the JMOL nor the Court of

Appeals per curiam decision does so. In fact, the per

curiam decision only includes 1 paragraph

addressing Stotter’s objection to the sufficiency of the

Rule 50(b) motion and 1 paragraph addressing the

sufficiency of the evidence. (App. 3-4)

Yet just before and after the unpublished decision

was issued in this case, two other panels of the Fifth

Circuit Court of Appeals issued decisions in cases

involving jury trials and Rule 50 motions, and in

each of those cases the panel performed an

exhaustive evaluation of all the evidence in the

record and made reference to the evidence in its

opinion. See e.g., Wackman, et al v. Rubsamen, No.

08-51119 (CA5 3/10); and Carmona v. SW _ Airlines

Co.; No 08-51175 (CA5 4/10).

The law is clearly established regarding the standard

of review for granting a motion for judgment as a

matter of law; the court is required to conduct a de

novo review of all the record evidence, and in a light

most favorable to the nonmoving party. See Reeves v.

Sanderson Plumbing Products, Inc., supra. All civil

htigants are entitied to be treated equally under the

same or similar circumstances. One litigant should

not be entitled to an exhaustive review of the

[21]

evidence supporting a jury verdict, while another

should be satisfied with a cursory statement that a

“de novo” review was conducted without any

evaluation or reference to the evidence apparent in

the court’s decision. ‘The notion that such a variance

in the standard of review could satisfy equal

protection guarantees, let alone basic notions of

fairness and justice, is untenable. Before a court may

grant a Rule 50 motion for judgment as a matter of

law, it must review the entire record in a hght most

faverable to the nonmoving party, and include in its

order or decision appropriate reference to all

evidence which supports the jury verdict. Only then

will civil litigants be guaranteed equal protection of

the laws: only then will civil ltigants rest assured

that justice was done.

Stotter was treated differently than other civil

litigants under the same or similar circumstances; a

jury returned a verdict in his favor, but a JMOL was

entered without either lower court completing a

review of the entire record, in a ight most favorable

to Stotter, and without reference to evidence which

could support the jury verdict. In a case such as this,

in accordance with this Court’s superintendence of

the federal judiciary, courts should be required to

articulate the evidentiary review conducted in

considering and ruling on a Rule 50 motion. This

Court should disallow the lower court practice of

including a statement that a “de novo review” was

conducted without reference to the evidence

reviewed; this practice 1s not sufficient to satisfy

constitutional guarantees of the right to a jury trial,

the right to due process, and equal protection of the

laws.

Failing to include any discussion or reference to the

evidence reviewed in the order and decision granting

JMOL amounts to fundamental error and invokes

this Court’s duty of superintendence of the federal

judiciary to insure that courts apply the correct

standard of review in ruling on Rule 50 motions to

prevent the unconstitutional denial of the right to a

jury trial, to due process of law, and the equal

protection of the laws.

CONCLUSION

kor all the reasons set forth herein, a writ of

certiorar1 should issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit

and, ultimately, vacate the judgment below and

remand the case to the District Court for the

Western District of Texas for an award of Stotter’s

attorney fees and costs, or alternatively remand the

case to the United States Court of Appeals for the

Fifth Circuit under direction to conduct a review of

the entire record in a light most favorable to

Petitioner. Petitioner prays for any and all other

relief as 1s just and fair at law or in equity.

Respectfully submitted this 10t day of August,

2010.

Regina Bacon Criswell

Carriage Place, P.O. Box 1399

Helotes, Texas 78023-1399

(210) 681-7303

Attorney for Petitioner

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 09-50415

PHILIP STOTTER, Ph.D

Plaintiff-Appellant

UNIVERSITY OF TEXAS AT SAN ANTONIO,

GUY BAILEY; DAVID JOHNSON

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:01-CV-434

Before DAVIS, WIENER, and SOUTHWICK,

Circuit Judges.

PER CURIAM:’

Plaintiff-Appellant Philip Stotter,

formerly a chemistry professor at the

University of Texas - San Antonio (UTSA), is

before this court for the second time on his 42

U.S.C. §1983 case implicating due process claims

* Pursuant to 5th Cir. R. 47.5, the Court has determined that

this opinion should not be published and ts not precedent except

under the hmited circumstances set forth in 5th Cir. R. 47.5.5.

arising from the alleged deprivation of

property without notice and a_ reasonable

opportunity to be heard. This time he is

appealing the _ district court’s grant of

Defendant- Appellee Guy Bailey’s Rule 50(b)

Motion for a Judgment as a Matter of Law

(JMOL) following a jury verdict favorable to

Stotter at the conclusion of the trial that

followed our remand of this aspect of

Stotter’s original appeal.

We affirm the judgment of the district

court based on its determination’ that

Stotter had no protectable property interest

in various notebooks that are alleged to have

been lost or destroyed following the cleaning

of Stotter’s office and laboratory at Bailey's

behest.

I. FACTS AND PROCEEDING

Stotter, a tenured chemistry professor at

UTSA, was employed there from 1974 to 2002

as a research professor. UTSA provided

Stotter with laboratory space, equipment,

and other resources. On _ several occasions

beginning in 1998, Stotter was informed that

his laboratory and office space posed safety

hazards and were otherwise not kept in good

order. As early as October 31, 2000, he was

informed in writing that he must address

these concerns or his lab would be closed.

Then, on the same day in January 2001,

Stotter received two letters, one advising that

his lab would be closed and that UTSA would

have it cleaned out, and the other informing

him that such action was being taken on

instructions from Bailey in his capacity as

Provost. That action then took place on

February 26, 2001.

Stotter filed suit in state court in May

of that year. After Stotter’s suit was

removed to the district court, summary

judgment was”) granted in favor of all

defendants, which judgment was affirmed on

appeal except as to Stotter’s due process

claim against Bailey, which was remanded

for further disposition. A jury trial on that

claim followed.

At the close of Stotter’s case and again at

the close of the evidence, Bailey made motions

for a JMOL pursuant to Rule 50(a), asserting

that Stotter did not have ae protectable

interest in any of the property lost in the

cleanup. Those motions were denied, and the

jury found that Bailey had violated Stotter’s

right to notice, that Stotter had a property

interest in various items in his lab, and

that he was entitled to $175,000 for the loss of

his research notebooks, but was entitled to

nothing for the alleged loss of the chemicals,

glassware, and the like. Following the jury’s

verdict, Bailey renewed his JMOL motion,

this time under Rule 50(b), which motion was

granted by the district court, and judgment

was rendered in favor of Bailey.

1. ANALYSIS

As a threshoid matter, Stotter argues

that the district court erred in considering

Bailey’s Rule 50(b) motion because it so

differed in content from his earlier Rule 50(a)

motions as to constitute waiver. After

hearing oral argument by able counsel for

both parties, considering the applicable law

as presented in the parties’ briefs, and

reviewing the record on appeal, we are

satisfied that Bailey’s Rule 50(b) motion was

sufficiently reflective of his Rule 50(a)

motions as to avoid waiver. The district

court was, therefore, entitled to consider

and rule on Bailey’s quest for a JMOL under

his Rule 50(b) motion.

Likewise, our de novo review of the

district court’s ruling on Bailey’s JMOL

motion satisfies us that it was providently

granted. Stotter failed to present sufficient

evidence to establish that he had a

protectable property interest in the subject

notebooks. Accordingly, no reasonable jury

could have found the presence of such an

interest when, as here, the law does not allow

it. Stotter’s argument that his notebooks fall

under the “scholarly or educational

materials” exception in UTSA’s IP policy is not

borne out by the evidence. That exception

would apply only if the materials at issue

were published or either copyrighted or

“copyrightable,” yet Stotter’s evidence was

not sufficient to demonstrate that the

notebooks in question contained material

other than research data. Accordingly, the

district court’s JMOL reversing the jury

award to Stotter is

AFFIRMED.

IN THE UNITED STATES COURT OF

APPEALS

FOR THE FIFTH CIRCUIT

No.09-50415

PHILIP L. STOTTER, Ph.D.

Plaintiff - Appellant

UNIVERSITY OF TEXAS AT SAN ANTONIO;

GUY BAILEY; DAVID JOHNSON,

Defendants - Appellees

Appeal from the United States District Court for

the

Western District of Texas, San Antonio

ON PETITIONS FOR REHEARING AND

REHEARING EN BANC

(Opinion 4/8/2010, 5 Cir, F.3d)

Before DAVIS, WIENER, and

SOUTHWICK, Circuit Judges. PER

CURIAM:

( La) The Petitions for Rehearing are DENIED and

no member of this panel nor judge in regular

active service on the court having requested that

the court be polled on Rehearing En Banc, (FED, R.

APP, P. and 5'™ CIR. R. 35) the Petitions for

Rehearing En Banc are also DENIED

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, SAN ANTONIO

TEXAS

Philip L. Stotter, Ph.D..,

Plaintiff,

Dr. Guy Bailey,

Defendant, . SA-01-CA-0434-OG

ORDER

Before the Court 1s Dr. Guy Bailey’s motion for

judgment as a matter of law. Dr. Bailey asks the

Court to overturn the jury verdict that awarded Dr

Philp Stotter $175,000 in damages for the loss of

research materials.

“A motion for judgment as a matter of law in

an action tried by jury 1s a challenge to the legal

sufficiency of the evidence supporting the jury’s

verdict. “Hiltgen v. Sumrall, 47 F.3d 695, 699 (5')

Cir. 1995) (parenthetical deleted). A motion for

judgment as a matter of law should be granted if “the

court finds that reasonable jury would not have a

legally sufficient evidentiary basis to find for the

party on that issye.” FED.R.CIV.P.50(a0). A post

judgment motion for judgment as a matter of law

should only be granted when “the facts and

inferences point so strongly in favor of the movant

that a rational jury could not reach a contrary

verdict. “Waymire v. Harris County, Tex., 86 F.3d

424, 427 (5% Cir. 1996). Great deference must b

accorded to the jury verdict and the Court will view

all the evidence and draw all reasonable inference

in the hght most favorable to the verdict. Brown

Bryan County, Okla., 219 F.3d 450, 456 (54 Ci

2000); Rhodes v. Gaunberson Oil ‘Tools

989 993 (5') Cir. 1996) Cen banc)

Dr. Stotter 1s a former chemistry prof

U'TSA. His claim avainst Dr. Bailey in this case }

one of the procedural due process. ‘To prevail on hi

claim, Dr. Storrer must show that he possessed a

protected property interest in the items that were

removed from his lab and that Dr. Bailey deprived

him of that interest without adequate notice and

opportunity to be heard

The substance of Dr sJalley argument in tne

present motion 1s a legal one---that Dr. Stotter had

no property mght in the research notebooks and

therefore cannot be awarded any sum for thei

deprivation. See Morley's Auto Body, Inc. v. Hunter,

70 F.8d 1209, 1212 (11 Cir. 1995) (whether plaintiff

has a protectable property interest is a question of

law for the Court); Tarabishi v. McAlester Reg’

Hosp., 827 |I.2d 648, 652 (10'" Cir. 1987) (same). The

Constitution does not create property interest

Board of Regents State Colleges v. Roth, 408 U.S

564, 577 (1972). Instead property interests are often

expressly created by state statutes or regulations

although they can also arise from written or

unwritten state or local government policies or from

mutually = exphieit understandings between a

government employer and employee. Cleveland Bd

Of Kduc. V. Loudermill, 470 U.S. 532, 538 (1985);

Perry v. Sindermann. 408 U.S. 593, 601-02 (1972);

Ihe rule and rep

Pexa SVSLCOM Koard ()]

ASSCTLOWNEG! hip to price

hte pert permit tne Board to

llectuanl property oO] ill ft aL

KUT AND REGULATIO OF THe BOARD OF REG

Ok Tl ly UNIVERSITY Ole THRXA y rieM Al J |

lhe hoard intellectual propert poker ‘pop z

all persons employed by the U1 ystem and tl

component Institution | tne ter nd !

anyone usiny oyvstem lacihithe I> lt

Board prohibit the we of the U7 tem of

component institution bacilitue ti reate, deve

pf commerciahze intellectual properti mrelated t

the individuals employment responsibilits G

at 8 Z.e U'TSA poly dupli Ali the Board poli

HANDBOOK OF OPERATING PROCK DUI cH

(Doc, #149, Ie»

mat Board turthe: if mri Ze t ynt est i

intellectual property cr ited using it Pactlity !

resources according to it ource of support.” Kx. |

1 ‘The first catepory of intellectual property ts that

which is unrelated to the individual employment

respon bility and ha been develope gd on hh) or her

won time without th tem support or use of the

Oystem facilitie It) x

intelles tual prope rtyv )

that bye lony to the cre

the only intellectual propert

aco? iy > 3) he CCOy!

category of intellectual propert.

‘

funding for the research, typically the university or other

employer.’ Id. at n. 4.

There is no evidence in the record that the

research notebooks were not kept in the course and scope

of Dr. Stotter’s employment at UTSA or drafted and

maintained without UTSA or U.T. System support. In

fact, evidence was to the contrary; Dr. Stotter testified

repeatedly that what work he did was for the University

while he was employed by the University. He never

attempted to testify to argue that he was, for example,

conducting a private business for personal gain in his

University laboratory. Accordingly, under U.T. System

policy, the notehook’s belong to che University unless Dr

Stotter showed that they are “scholarly or educational

works’.

The contents of the notebooks included

documentation of Dr. Stotter’s laboratory research. This

so because Dr. Stotter testified that he lost a proffered

research contract due to his inability to utilize his

documented research, and that he was unable to utilize

the research contained in the notebooks to publish articles

related to that research.4 As such, the research materials

belong to UTSA, the institution that employed Dr. Stotter,

furnished the lab and equipment he utilized, and provided

the funds for his research. See, e.g. Columbia University,

RCR DATA ACQUISITION AND MANAGEMENT, available

at http://eenmtl.columbia.edu/projects/rer/rer

data/foundation/index.html#2-A

This was confirmed by the evidence at trial. Every chemist who

testified except Dr. Stotter stated cither that the notebooks belonged to the

institution or that they sought permission from the institution before

taking the notebooks when they left

In addition, Question 3A in the jury verdict defined the property in

gucstion as “[dJocumented — research aterials reflected im journals,

notebooks and other documentation including but not limited to

information stored on University computers, disks, or diskettes.”

(“Although graduate students, postdoctoral fellows,

or even some faculty in academia_ performing

research may believe that they own data collected,

they are wrong. As employees of a university, they

are working for hire for the university, which, in

most cases, owns the rights to the data.”); Jennifer A.

Thompson, IP HANDBOOK OF BEST PRACTICES, Ch. No.

8.2, available at

http//www.iphandbook.org/handbook/ch08/p02/

(“The person or organization who is paying the bills

owns your laboratory notebook. In most cases, this

will be the company, university or institute who

employers you or your supervisor.”).

The Court holds as a matter of law that Dr.

Stotter had no _ protectable property interest in

research materials, and he was therefore not entitled

to notice prior to their deprivation Dr. Bailey's

motion for judgment as a matter of law (docket no

149) is GRANTED. Therefore, the award for

monetary damages in Question 3A of the verdict

based on the deprivation of the research materials

cannot. stand. The Court will enter judgment

accordingly

Signed this 14'» day of April, 2009

/>/

ORLANDO L. GARCIA

INITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF TEXAS SAN ANTONIO DIVISION

PHILIP L. STOTTER, CASE NO.

Plaintiff SA-01-CV-434-OLG

VERSUS February 11, 2009

UNIVERSITY OF TEXAS AT February 12, 2009

SAN ANTONIO, ET AL

Defendants

Trial of the Merits

BEFORE THE HONORABLE ORLANDO L.

GARCIA, UNITED STATES DISTRICT JUDGE,

AND JURY

Volume 3 of 3

TRANSCRIPT ORDERED

BY; Honorable Regina Bacon Criswell

APPEARANCES

lor Plaintiff Honorable Regina Bacon Criswell

Carriage Place

P.O. Box 1399

Hlelotes, Texas 78023-1399

Kor Defendants Honorable Shelley Dalhberg

Honorable William TT, Deane

Assistants Attorney General

300 W. 15" Street, Suite

Austin, Texas 78701

Court Reporter Maurice D. West

Official Court Reporter

655 EK. Durango Blvd., Suite 316

san Antonio, Texas 78206

MS. DAHLBERG: Yes, we have a motion for

judgment that we would hke to offer at this time on

behalf of the defendant.

First of all, Your Honor, the initial question,

which is a legal question for the Court, 1s whether or

not the plaintiff has established that he has a

protected property right in any of the items that he’s

seeking relief for from the jury, and I understand at

this point that the Court is asking the defendants for

some law on those things and we will get that to you

as soon as possible. But, in the meantime, we don't

beheve that the —

THE COURT: See, that the question would

have been resolved—this case, as you know, was not

before me, it was with Judge Justice, I believe. And |

believe that question should have been resolved early

on, but, in any event--

MS CRISWELL: Well, Your Honor, if | could

enlighten the Court on that issue. Ms. Dahlberg

wasnt involved in the case at that stage, it was

another attorney.

THE COURT: Right.

MS. CRISWELL: Judge Justice inititally held

that Dr. Stotter could not allege a due process claim

because he had an adequate remedy at law for

conversion.

THE COURT: Conversion, right.

MS. CRISWELL: And so that was—he said

you can only allege a due process violation if there

isn't an adequate remedy at. state law.

THE COURT: Right.

MS. CRISWELL: And, of course, you can’t sue

the University for conversion, they're immune from

that claim. And that’s why we went up to the Fifth

Circuit and the Fifth Circuit did find that Judge

Justice’s rulings on the due process claims were

erroneous because he hadn't—I mean essentially

none of the parties had even evaluated the law

correctly.

THE COURT: Right, and that why we're here.

MS CRISWELL: So that’s why we're here

because he evaluated it not on their argument that

they owned everything and them providing law to

that effect, just saying they had an adequate other

remedy.

THE COURT: Okay. And then, of course,

even if part of every—whatever was taken and not

returned, your argument is going to be part of that

belongs to the University in any event? That’s what

you're going to claim?

MS DAHLBERG: Yes, Your Honor. Whether

it was returned or not returned

THE COURT: Right, in any event, part of it.

MS DAHLBERG: --the argument is that—

THE COURT: Let’s say there was 158 items

removed and 158 items not returned. Other than the

items already returned. I’m talking about things

that Dr. Stotter claims that he had on that day in the

lab that were not returned. Part of those things, I

would imagine, the University is going to claim,

“Well, whether they were or weren't returned, they’re

ours In any event.” But that leaves a balance of

other matters: notebooks and stuff, or items that Dr.

Stotter brought from the University of Texas at

Austin or purchased and had there. So go ahead

with your argument about—there’s a legal issue but

it doesn’t cover all the items. So—

MS. DAHLBERG: Weil, it does cover all of the

items, Your honor, because I believe that the

evidence demonstrates at this point that Dr. Stotter

hasn't carried his burden to demonstrate any—he

hasn’t been particular about the items he brought

with him from the University of Texas. He brought

them—he testified that he brought them for the

purposes of conducting the work at the University of

Texas at San Antonio that he was hired to do. And

the evidence shows that the University of Texas paid

for the transport of the materials that were brought

from the University of Texas System, or University of

Texas at Austin so—

THE COURT: And so you’re claiming that

those items belong to the University of Texas?

MS DAHLBERG: Yes, they came from the

University of Texas at Austin to the University of

Texas at San Antonio.

THE COURT: All right. Okay.

MS. DAHBERG: The notebooks you

mentioned earlier, the University asserts a property

interest in those as well. Those notebooks are, again,

the raw data that Dr. Stotter generated cither under

grants or donations, gifts, whatever. However it was

funded, those funds were University funds. He

generated that information in the University’s lab

with University property, University electricity,

University water, University insurance, all of those

things. Those items — he hasn’t come forward with

any evidence to show that he purchased any of those

things out of his own pocketbook. Indeed, he testified

that the money that he used that was his own, that

he had donated that to the University cither through

his consulting business or otherwise. That’s a gift to

the University. And, thus, it’s the University’s

property.

THE COURT: Are you saying then, Ms.

Dahlberg, that—well, what would you claim—are

you claiming, then, that he didn’t own or doesn’t own

anything?

MS. DAHLBERG: Of the things that he’s

claiming an ownership right to and asking the jury to

award him money for in this lawsuit, that’s right. He

didn’t own any of it.

THE COURT: Well, what if anything —let me

put t this way, than. What, if anything did UT take

in the clean-up that belongs to him?

MS. DAHLBERG: Nothing.

THE COURT: Nothing.

MS. DAHLBERG: Nothing. And the reason

that the University returned the items to them was

because the University was basically waiving any

right that they had to those items by giving them to

Dr. Stotter. It’s the same thing that we’ve heard over

and over through all of these witnesses.

THE COURT: Okay, and that’s why you're

going to present the law to me later on.

MS. DAHLBERG: Yes.

THE COURT: Do you have any _ other

argument?

MS. DAHLBERG: That is the protected

property right interest.

THE COURT: Right.

MS. DAHLBERG: The other issuc, and this is

the fact question for the jury, but ts the question of

whether or not Dr. Stotter received—nort procedural

due process, but reasonable notice and an

opportunity to respond. And the standard with which

the Court reviews a motion for judgment is what, you

know, what is — whether any reasonable jury could

find in Dr. Stotter’s favor on that particular question.

And the evidence in this case is clear that Dr. Stotter

was given notice on January 13t> of 1999 and an

opportunity to respond. And he was given notice in

March of 2000 and an opportunity to respond. And

then he was given notice again in October —

THE COURT: Right, but he was told in each of

those instances to do something, and [ think

sometimes it said do immediately.

MS. DAHLBER: Yes.

THE COURT: Bit it gave no date certain and,

more importantly, it gave no consequence for failure

to do something. It'd be like me telling my son, “I’m

not going to take you to the Spurs”’—rather, if I tell

my son, “clean up your room,” and he doesn’t do it.

Then | tell him again and he doesn’t do it. But if I tell

him, “You don’t clean up your room, I’m not going to

take you to the Spurs game,” that is a consequence.

And in this instance the University told him, “you

have to do this immediately.”

What might have been a better practice — and

I’m not trying to second guess Dr. Bailey or the

University System, Lord knows they have their own

set of problems. But what might have been

preferable might have been — perhaps in the future

to say something like, “you clean up this lab within

l4days unless extended in writing.”

And what happened here, it appears, is that

Dr. Stotter was told to do something. There was no

consequence attached for the failure. There was no

deadline, it says immediately. Then he got a letter.

But the evidence has shown that he got the letter

after the clean-up had already began, or completed

So I think there’s a problem.

And I'm going to let the jury, the jury may say

“No,

IN THI UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

PHILIP STOTTER, PhD., §

Plaintiff, § CIVIL NO.

§ SA-01-CA-434-OG

§ (Consvlidated with

§ SA-04-CA-0372)

GUY BAILEY, PhD §

Defendant §

DEFENDANT, GUY BAILEY’S

MOTION FOR JUDGMENT

TO THE HONORABLE ORLANDO GARCIA,

UNITED STATES DISTRICT COURT:

Defendant, Guy Bailey, Ph. D., former Provost

of the University of Texas at San Antonio, files this

Motion for Judgment pursuant to FED. R. CIV. P. 5 Olb)

and respectfully shows the Court the following’

INTRODUCTION

This motion raises the issue of whether the

Plaintiff may collect damages concerning property

laboratory notebooks — to which the Plaintiff has no

demonstrated title and the specific contents of which

were never even discussed at trial. As the Court is

aware, Plaintiff, Philip L. Stotter, Ph.D. contends he

was not afforded due process when the laboratory

entrusted to him by the University of Texas at San

Antonio (““UTSA”) was cleaned first by a hazardous

materials team in February 2001 and again by the

UTSA Chemistry Department in May 2002. The jury

determined that (1) Dr. Bailey did not give Dr. Stotter

adequate notice of UTSA’s intent to clean up his

laboratory; (2) Dr. Stotter had a property right in the

items or materials removed from his laboratory; and

(3) Dr. Stotter was entitled to $175,000 in damages for

the research notebooks. The jury’s verdict indicates it

found that only the laboratory notebooks in the

laboratory belonged to Dr. Stotter. However,

consistent with UTSA policy, federal law and the

practice of every serious research university in the

higher education community, Dr. Stotter did not

(and could not) have a protected property right or

ownership interest in them. Accordingly, the Court

should determine that Dr. Stotter did not have a

protected property nght in laboratory notebooks and

disregard the jury’s verdict. In addition, in the event

the Court interprets the jury’s verdict to reflect that

the jury found Dr. Stotter had a protected property

interest in the equipment and chemicals, that

finding was likewise in error because they could only

be the property of UTSA and the State and so it

should be disrerarded.

If.

PROTECTED PROPERTY INTEREST

Before the Court can enter judgment on the jury’s

verdict, it must determine whether Dr. Stotter

demonstrated a deprivation of an _ interest in

“property” within the protections of the Due Process

20)

Clause. U.S. CONST. amend. XIV; see Ftichardson v

Quarterman, 537 F.3d 466, 472 (5th Cir. 2008)

(whether due process right violated is question of law

for court) Property interests “are created and thei

dimensions are defined by existing rules. or

understandings that stem from an_ independent

source such as state law, rules or understandings that

secure certain benefits and that support claims of

entitlement to those benefits.” erry v. Sindermann

408 U.S. 598, 576 (1972). While Perry indicates that

there is no rigid limit to the source of a property

right, there are nevertheless limits to what }

considered a property right:

There must be some reasonably identifiable

source from which the rights spring; they

cannot cmanate, as was said in Ferry.

from “mere subjective expectancy.” The

law still recognizes the immutable notion

that something cannot spring from

nothing. One cannot create for himself a

property by proclaiming its existence

Sims v. fox, 505 F.2d 857, 861-6205th

Cir. 1974) (citations omitted)

Dr. Stotter contends that he gained a property

interest in his early research laboratory notcbooks, a

non specific chemical library, and certain

unenumerated equipment when a dean at the

University of Texas at Austin gave these items to

him. He further contends he obtained a_ property

night in the laboratory notebooks, equipment and

some chemicals he kept in his assigned laboratory

while employed at UTSA under its and The

University of Texas System’s (‘U.T. System”)

intellectual property policies.

To prove he acquired an interest in the item:

purportedly given to him in the 1970s, Dr. Stotte:

must show that the donor had authority to make a

gift in the first place. And to prove he obtained an

interest in the items under the U.T. System

intellectual property policy, Dr. Stotter must show

that the policy vranted him such an interest. /d, see

Henderson v. Sotelo, 761 F.2d 1093, 1096 (th Cir. 1

985) (sufficiency of public cmployee’s claim to a

property interest in employment, whether created by

statute or contract decided by reference to state law)

The appheable state law and policies upon which

Stotter rehes for hi purported property interest

upport the opposite conclu Or)

A, Dr. Stotter Does Not Have a Protected

Property Interest In Certain Items Formerly

Contained In the UTSA Laboratory.

Dr. Stotter contends that under U.T. System

and U'TSA’s intellectual property policies he personally

owned the laboratory notebooks in which he recorded

his research. ‘These policies do indeed prant a

researcher/professor ownership rights to a limited set of

intellectual property. But the research notebooks do

not fall within that at Instead the — policy

demonstrates the contrary; that UTSA owned thi

notehooks

1. U.T. System Intellectual Property Policy

Inder we rules and regulations of ‘The

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(“Board”), the Board may assert ownership § to

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ICy/3Z26. html (scholarly work includes syllabi, instructional]

maternal, distance learning works, journal articles, literary

works): University of California Ios Angeles, Office of

[Intellectual Property, OIPA Guide: “Intellectual Property in the

University

Knvironment, availableathttp/www.research. ucla.cdu/olpa/g

wmdes/AntcHectualproperty. htm (Faculty own the copyright in

their scholarly works (such as textbooks and course syllabus),

but not in works which are the outcome of sponsored research

or were created using UCLA resources”): Washington

University in St. Louis, Policy for Authorship on Scientific and

Scholarly Pubhcation

avaullableathttp/www.wustledu/policies/authorship.Atml

(defining “scholarly pubhcations” as “articles, abstracts,

presentations at professional meetings and grant applications,

[that] provide the main vehicle to disseminate findings,

thoughts, and analysis to the scientific, academic, and lay

communities )

assumes publication of some _ written material,

regardless of its form. /d It does not include

University- or third party-funded data or research

results that may form the basis for such creative

works; those remain the property of the University. /d

Universities across the country generally maintain this

dichotomy—‘scholarly and educational” works

(personal property of faculty) on the one hand and raw

data and research results on the other (property of

the university)— largely as a historical vestige of

federal copyright law. Specifically, before passage of

the 1976 Copyright Act codifying decades of case law

that had grown up around the 1909 Act, courts had

developed a “teacher exception” to the work made for

hire doctrine allowing employers to own the work

product of their employees. See, ecg.. Hays v. Soni

Corporation of America, 847 F.2d 412, 416-17 (7th Cir.

1988) (discussing history and rationale for teacher

exception). The teacher exception Was dropped from

Section 101’s definition of a work made for hire in the

1976 Copyright Act, 17 U.S.C. § 101, prompting some

courts to question whether Congress intended to do

away with the exception under the 1976 Act. /d. As a

result, those universities electing to permit faculty

ownership of scholarly works generally do so via

policy, just as the Board does so. /d. At the same time,

courts are uniform in understanding that scholarly or

educational works involve only the = creative

expressions of a professor.”

2 As the Hays court observed: “Although college and university

teachers do academic writing as a part of their employment

responsibilities and use their employer's paper, copier, secretarial!

staff, and (often) computer facilities in that writing, the universal

assumption and practice was that Gin the absence of an explicit

agreement as to who had the nght to copynght) the mght to

college or university. There were good reasons for the

assumption. A college or university does not supervise its

faculty in the preparation of academic books and articles, and 1s

poorly equipped to exploit their writings, whether through

publication or otherwise ” Hays, 847 F. 2d at 416

As for research 1iotebooks, they are

traditionally repositories for the observed results of

scientific inquiry (for example, laboratory data)

that is, non-creative expression. By contrast, federal

authorship,” 17 U.S.C. § 102(a), and there can be no

“discoverlies]”) or “any idea, procedure, process,

system, method of operation, lor] concept,” 17 U.S.C. §

102(b). Non-creative expression is not protected by

educational work. Indeed, for Dr. Stotter to tie his

recovery for damages to the claim that certain

laboratory notebooks included copyrightable

scholarly or educational works would be remarkable

and exceptional—and was a claim = completely

unsupported by any evidence proffered at trial.

2. The Research Notebooks to Which Dr.

Stotter Claims an Ownership Interest

Belonged to UTSA.

D: Stotter contends that the research

notebaoks contained in his laboratory fall into the

category of “scholarly or educational works” and thus

belong solely to him. But his subjective expectation

based on a misunderstanding of the policy’s meaning

is irrelevant. Perry, 408 U.S. at 576; Sims, 505 F.2d

at 862. The policy itself is the source from which Dr.

Stotter’s rights, if any, spring. Sums, 505 F.2d at 862.

And the policy makes clear that Dr. Stotter did not

have any rights to the research notebooks in his

laboratory

There is no evidence in the record that the

research notebooks were not kept in the course and

scope of Dr. Stotter’s employment at UTSA or

drafted and maintained without UTSA or U.T.

System support. Accordingly, under U.'T. System

policy, the presumption that these notebooks belong

to the University stands unless Dr. Stotter showed

that they are “scholarly or educational works.” Dr.

Stotter did not do so.

Kor Dr. Stotter to have made the showing that as

a matter of law the research notebooks in his UTSA-

owned laboratory were his own, he had to come

forward with some evidence other than yust hus

counsel’s argument indicating that the notebooks

contained “scholarly or educational work.” Dr. Stotter

wholly failed to carry his burden. There is no evidence

in the record that would have allowed the jury to

reasonably infer that the research notebooks contained

syllabi for Dr. Stotter’s classes, his lecture notes, or a

draft of a text book. Nor is there evidence in the

record that the research notebooks contained journal

articles, a manuscript, or any other material authored

by Dr. Stotter that could be construed as a scholarly or

educational work. Based on what Dr. Stotter said and

even more so on what he did not say, it is clear that the

notebooks did not contain scholarly work. Without this

evidence, Dr. Stotter faled to overcome the

“presumption” that the research notebooks contained

in the laboratory belonged to the Board.*

The United States Supreme Court has held that

a night can amse out of custom, practice, or an

“unwritten common law” at a particular entity. Perry,

408 U.S. at 603. But Dr. Stotter’ s contention that the

notebooks belonged to him contravenes not only the

evidence in the case—every chemist who testified at

trial except Dr. Stotter stated either that the

notebooks belonged to the institution or that they

sought permission from the institution before taking

the notebooks when they left---but it also ignores the

consensus and custom among governmental and

educational institutions that research notebooks

belong to the funding institution.’ Dr. Stotter therefore

failed to demonstrate that some custom or practice

supported his expectation of a property interest in the

research notebooks in the laboratory.

Dr. Stotter is much like the plaintiff in Szzs v.

Fox, who claimed a property right in his continued

employment with the Air Force. 505 F.2d at 862.

There the Fifth Cireuit, noting that “[o]ne cannot

create for himself a property by proclaiming its

existence,” held that Sims had no property right in

continued military employment because he could

point to nothing other than his own expectation of

such a night. /@ Like the court in Sims and in the

absence of specific evidence from Dr. Stotter, this

Court should find as a matter of law that Dr. Stotter

did not have a property interest in the laboratory

notebooks in his laboratory.

While it is possible that these research notebooks may have

contained copyrightable maternal, even that copyrightable

material belongs to the Board Ex 1 at 1, § 2.2

k.g., Washington State University and Office of Research

Integrity, US Dept Health and Human Servs, Lah

Mana gement Sa fets P Mentorsh ip, Writi npg Skills

Data, and Administration, available at

http://or..dhhs.gov/education/products/wsu/data_ lab.htm| (“The

one who funds the research is usually the owner.”):

http-//or_dhhs.vovw/educauou/products/wsu/fag. html (In general

research institutions own the data collected with funds given to

the institution). Columbia University, RCR Data

Acquisition and Manapement, available at

http-//cecnmtLcolumbia.edw projects/rer/rer_ data/ftoundation/index

html#2 A (Although graduate students, postdoctoral fellows, or

even some faculty in academia performing research may believe

that they own the data collected, they are wrong. As employees

of a university, they are working for hire for the university,

which, in most cases, owns the mghts to the data.”); Jennifer A

Thomson, /P Handbook of Best Practices, Ch. No. 8.2,

available at http-//wwwuphandbook.org/handbook/chO&/p02

(The person or organization who is paying the bills owns

your laboratory notehook In most cases, this will be the

company, university or instiiute who employs you or your

supervisor. )

Chemicals and Equipment

To the extent the Court finds that the jury

found Dr. Stotter had a protected property interest 1n

the chemicals and equipment in his laboratory, that

finding 1s contrary to the law and unsupported by the

evidence.

a. The intellectual property policies do not

apply to “inputs”.

UTSA’s intellectual property policy defines

intellectual property to include patents, trade

secrets, copyrights, and trademarks. Ex. 2, §

2.27(b). Simply put, the policy applies only to the

outputs — the intellectual property. On its face, the

policy does not apply to the data underlying these

types of intellectual property. The ‘inputs’, including

the chemicals and equipment used to develop the

outputs are not covered by the policy. See id.

Accordingly the U.T. System intellectual property

policies do not apply and are not instructive to the

question of whether Dr. Stotter had a_ protected

property interest in the chemicals and equipment in

his laboratory.°® In fact, because State money was

likely used to buy the chemicals and equipment in

Dr. Stotter’s laboratory, U'ITSA, on behalf of the

State of Texas, owned the inputs, eg, the

chemicals and equipment, just hike UTSA owned

the research notebooks.

laboratory notebook. In most cases, this will be the company,

university or institute who employers you or your supervisor.)

Assuming the Court determines the intellectual policy

apphes to the chemicals and equipment in Dr. Stotter’s

laboratory, because they are not “scholarly or educational

work” as described in the foreguing section, supra Part II, A,

these items did not belong to Dr. Stotter and he therefore had

no right to any notice before the laboratory was cleaned

up.State of Texas, owned the inputs, e.g., the chemicals and

equipment, just like UTSA owned the research notebooks.

b. The chemicals and equipment were in Dr.

Stotter’s laboratory only by virtue of his

employment at UTSA.

More importantly, the overarching principle in

this case and in U.T. System’s intellectual property

policy is that the research notebooks, equipment and

chemicals contained in Dr. Stotter’s laboratory were

necessary to the work that he was hired to do. That he

had a laboratory filled with chemicals and equipment

in the very first place was possible only by his

employment at UTSA. See Frontera v. City of

Columbus, 2008 WL 5377960, *8 (S.D. Ohio, Dec. 28,

2008). It is against this backdrop that Dr. Stotter had

to overcome his burden to demonstrate he had a

protected property interest in the equipment and

chemicals contained in his laboratory. Dr. Stotter’s

employment relationship with UTSA and his failure

of proof, particularly in hght of relevant Texas law

about the use of state-owned property, demonstrate

that the cheinicals and equipment in the laboratory

belonged to UTSA.

Texas law and the U.T. System policy regarding

the use of State-owned property demonstrate that the

non-inventoried, unidentified chemical library and

equipment belonged to UTSA. The Texas

Constitution provides that: “The Legislature shall

have no power to make any grant or authorize the

making of any grant of public moneys to any

individual, association of individuals, municipal or

other corporations whatsoever...” TEX. CONST. art.

I], § 51. The Texas Legislature, recognizing this

constitutional provision, adopted § 2203.004 of the

Texas Government Code, entitled “Requirement to

Use State Property for State Purposes,” which provides

“State property may be used only for state purposes.

A person may not entrust state property to a state

officer or employee or to any other person if the

property is not to be used for state purposes.” The

constitutional and statutory mandate is clear: no

public momes or property may be used for private

purposes.

The Board of Regents of The University of Texas

System, pursuant to its statutorily granted authority,

TEX. EDUC. CODE §8§ 65.11, 65.31, has adopted

policies and procedures that follow this mandate. The

Board prohibits a person from using buildings or

facilities owned or controlled by U.T. System or any

of its component institutions “for any purpose other

than in the course of the regular programs or

activities related to the role and mission of the U.1

System or component institution,” unless authorized

‘

by the Regent’s rules. Ex. 3 at 1, § 6.2.

The laws and policies make absolutely certain

that the University did not, indeed it could not, have

entrusted the laboratory to Dr. Stotter to serve as his

personal laboratory or a storage unit for his personally

owned chemicals and equipment. Dr. Stotter was

usiny the laboratory for its intended purposes, within

the course and scope of the job he was hired to do and

for which he was paid---to teach, conduct research,

attract grants to the University---or he was using it

for his own private purposes. He can not have it both

ways. If his private use of the lab was more than

incidental and intended to benefit him personally, his

actions could be considered criminal. Tex. [Ethics

Comm'n Op. 372 (August 8, 1997) (citing Tex.

PENAL CODE §& 39.02).

There has been no evidence offered into the

record to suggest that Dr. Stotter was conducting a

private business for personal! gain in his laboratory and

Defendant does not suggest that he did. He testified

repeatedly that the work he did was for the

University. It is Dr. Stotter’s burden to prove that

the property belonged to him. But because Dr.

Stotter affirmatively demonstrated that the

chemicals and equipment served as the foundation for

the work he did at and for UTSA, Dr. Stotter has

proved that his research inputs-—chemicals and

equipment---belonged to UTSA.

B. Dr. Stotter Does Not Have a Protected

Property Interest In The Items Purportedly

Given to Him By A UT-Austin Dean In

1974.

Dr. Stotter contends that a dean at the

University of Texas at Austin gave to him certain

unidentified University-owned chemicals, equipment,

and research notebooks in the mid-1970s. According

to Dr. Stotter, this grant of these items to him, even

though they were ultimately used in his UTSA

owned laboratory, conferred upon him ownership

rights to them. But the most basic tenets of property

law teach that this purported gift, as a matter of law,

could not have transferred title to any of these items

to Dr. Stotter.

“To make an effective transfer of an ownership

interest, the donor must own the property being

transferred. The donor cannot transfer to the donee a

greater Ownership interest in the property than the

donor owns.” Restatement (Third) of Property § 6.1

emt. C (2003); Cf Jones v. PA. W_N. Enterprises, 988

S.W.2d 812, 822 (Tex. App.—Amarilo 1999, pet.

denied)(exercise of de facto governmental powers gave

government no right to convey valid title of property).

On the other hand, a person receiving a gift “acquires

only whatever interest his or her donor had in the

subject of the pift.” 38 AM.JUR.2d § 68

The state is constitutionally prohibited from

making grants of public money. THX. CONST. art

[11 § 51. Pubhe money was likely used to buy most of

the chemicals and equipment in Dr. Stotter’s

laboratory and UT-Austin, on behalf of the State of

Texas, owned these chemicals. Accordingly, while

the dean could have leyally transferred the

equipment and chemicals to U’TSA, the dean had no

authority to transfer title to any of these items to Dr.

Stotter---to do so would have been ilepval---and any

transfer of these items to Dr. Stotter personally was

void. Because UT-Austin owned the chemicals,

equipment and notebooks and the dean did not, the

dean's purported transfer of these items to Dr

Stotter gave him no property rights whatsoever to

them.

Vi.

CONCLUSION

The research notebooks for which the jury

awarded Dr. Stotter damages did not belong to him

under U.'T. System policy. Dr. Stotter offered no other

ource---legal or factual---beyond the policy to support

his claimed ownership interest in the notebooks. Dr

totter’'s misunderstanding of the policy’s meaning

ipports only his subjective expectation that the

notebooks belonged to him. His” expectation 1:

insufficient to establish as a matter of law that they

ictually legally belonged to him. Dr. Stotter

therefore did not have a protected property interest in

the notebooks and had no corresponding mght to

procedural due process---that is reasonable notice

and an opportunity to respond---when the notebook:

were removed from the laboratory.

In the event the Court determines the jury

determined Dr. Stotter had a_ protected property

interest in the equipment and chemicals, Dr. Stotter

has offered no legal or factual support for his

contention that those items belonged to him. In fact

the evidence demonstrates otherwise

Without a protected property interest in the

notebooks, chemicals and equipment, there is no basi:

for the jury’s finding that Dr. Stotter did not receive

reasonable notice because he was not entitled to it

The Court should accordingly disregard the jury

avoul

verdict and enter judgment in Guy Bailey's

(GREG ABBOT!

Attorney Ce neral of Tes

C ANDREW WEBER

l‘irst Assistant Attorne’

DAVID S. MORALES

Deputy Attorney Creneral for ¢

ROBERT B. OK Eel i

Chief, General Litigation Divi

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SHELLIEY N. DAHLBERG

Lead Attorney

‘Texas Bar No. 24012491

WILLIAM 'T’. DEANE

State Bar No. 05692500

Assistant Attorneys: Gene

Litigation Division

Post Office Box 1254

Capitol Station

Austin, Texas 78711°254+

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ON PETITION FOR PANEL REHEARING

3efore DENNIS, PRADO, Circuit Judges. and

ENGELHARDT, District Judge.’

DENNIS, Circuit Judge:

This case involves the termination of an

employment contract of a tenured professor, Philip L.

Stotter, Ph.D, at the University of Texas at San

Antonio (““UTSA”) and the alleged destruction of

his personal property. UTSA_ terminated its

contract with Dr. Stotter because of his alleged

repeated refusal to improve the conditions of his lab

and office, both of which allegedly posed serious

health and safety hazards. Upon remedying these

issues, UTSA allegedly discarded several pieces of

personal property belonging to Dr. Stotter without

giving him sufficient opportunity to retrieve them. Dr.

Stotter filed a § 1983 procedural due process claim

against UTSA, Dr. Guy Bailey, and Dr. David

Johnson: and equal protection and First Amendment

claims against U'ITSA, the Board of Regents, Dr

Bailey, and Dr. Richard Romo. The distmct court

pranted summary judgment in favor of the

defendants. On November 5, 2007, we affirmed, in

part, reversed, in part, and remanded this case to the

district court for proceed@*ngs consistent with that

opinion. On November 19, 2007, UTSA filed a

motion for panel rehearing. We hereby GRANT the

motion, VACATE the prior panel opinion, and

SUBSTITUTE this opinion in its place.

* District Judge

designatio

I. BACKGROUND

Philip L. Stotter, Ph.D, had been a tenured

professor in the Department of Chemistry at UTSA

since 1974. UTSA provided him with a lab and an

office to perform research, teach students, meet

with colleagues, and otherwise perform the normal

functions of being a faculty member.

In December of 1998 and January of 1999,

UTSA inspected several labs in the Chemistry

Department due to reports of potential health and

safety hazards and, according to Dr. Stotter, the

possibility of “drug-making activity” associated

with the lab of a colleague, Dr. Budalur

Thayagarajan. Richard Garza, a UTSA employee,

informed Dr. Weldon Hammond, the Director of

Earth and Physical Sciences and supervisor of the

Department of Chemistry, that the labs of Drs.

Thayagarajan and = Stotter needed immediate

attention. Dr. Thayagarajan's lab was in need of an

emergency eye wash station and proper storage

containers and two refmgerators required cleaning

Dr. Stotter's lab lacked personal protective

equipment and proper storage containers and one

refrigerator required cleaning. According to UTSA,

Dr. Stotter was verbally notified that these

deficiencies needed to be corrected.

On February 16, 1999, according to Dr. Stotter,

UTSA determined that Dr. Thayagarajan's lab had

“big”? problems. Several unidentified chemicals

required special handling, some of which were toxic,

and two refrigerators were In need of

decontamination. In May and June of 1999, according

to Dr. Stotter, UTSA determined that the lab might

also contain TNT and old ethers and that a bomb

squad might have to remove these hazards

UTSA_ eventually contracted with a company to

clean the lab.

In December of 1999, UTSA conducted

routine inspections of the faculty offices and

determined that Dr. Stotter's office was an “extreme

fire hazard” due to papers, trash, and boxes. Dr.

Stotter alleges that he was not present tor this

inspection, did not receive a copy of the report, and

was not requested to take any action. According to

UTSA, he was verbally notified to clean his office.

In March of 2000, UTSA again inspected

Dr. Stotter's lab and determined that some

problems still needed attention. Dr. Stotter alleges

that he was not present for this inspection and did

not receive a copy of the report until October or

November of 2000. It was later discovered that the

report was emailed to Dr. Stotter, but he was not

using the U'TSA email system at the time.

In the summer of 2000, Dr. Stotter accepted a

summer appointment at Los Alamos National

Laboratory in New Mexico. During that time, he

closed his lab. On August 14, 2000, while in New

Mexico, Dr. Stotter sent a memo to UTSA officials and

members of the faculty addressing an ongoing dispute

regarding his medical leave during 1989-1991 and

through 1993. At one point in his memo, he

referred to an ‘administrative misuse of. [his]

benefits at UTSA.

‘.\

in Ociober of ZOVO, U'TSA again inspected

Stotters office and determined that problems

Dr. Hammond sent Dr. Stotter an

email requesting that he correct the situation as

soon as possible. Due to health issues, Dr. Stotter

was given until November 10, 2000 to clean his

office. On October 31, 2000, UTSA also advised Dr

Stotter that he needed to address the issues

regarding his lab to avoid closure. Plans to clean

his office subsequently fell through. On December 18,

2000, UTSA conducted additional inspections of the

labs and found that several labs, including Dr.

Stotters, still had problems. Dr. Stotter alleges he

did not receive this report until January &, 2001.

On January 2, 2001, Dr. Hammond sent

Dr. Stotter two letters indicating that he had

violated UTSA‘'s health and safety regulations, that

he had been notified several times about these

violations, and that UTSA intended to remedy

the situation with his office on January 8, 2001.

The second letter indicated that Provost Dr. Guy

Bailey had been notified and was now involved. Dr.

Stotter responded with a letter to Dr. Hammond,

Dr. Bailey, and UTSA President Dr. Ricardo

Romo, detailing his efforts to address these

problems. He indicated that he had met with a

safety officer about removing the chemicals from his

lab and that several colleagues and students were

going to help him clean his vince sometime in the first

week of January. By the end of the first week of

January, however, the office had not yet been

cleaned, and on January 8 2001, U'TSA proceeded

with its plans to clean it. Dr. Stotter tried to halt

the cleanup effort and caused such a disturbance

that UTSA police handcuffed hi ok him to his

car, and advised him to leave the »~ .nises

On January 12, 2001, Dr. Romo sent a letter

to Dr. Stotter informing him that he was being

suspended with pay pending an_= investigation

regarding the complaints about his lab and office.

his unwillingness to remedy the situation, and the

incident with UTSA police.” On February 16, 2001,

Dr. Bailey interviewed Dr. Stotter. During the

interview, according to Dr. Bailey, Dr. Stotter

admitted that the lab had safety issues but stated

that it was not his fault because several faculty

members were using the lab for storage. He

indicated that a student was going to help him clean

it at some uncertain future date. With respect to his

office, he indicated that he used it for storage and

that his attempts to clean it had fallen through.

Dr. Bailey also inquired about Dr. Stotters prior

email regarding medical leave. He advised Dr.

Stotter that UTSA officials thought the matter

was resolved back in 1992. After the meeting, Dr.

Bailey concluded that he could not rely on Dr.

Stotter to clean his lab.

On February 23, 2001, Dr. Bailey sent a

certified letter to Dr. Stotter informing him that

UTSA closed his lab and that UTSA would clean it

on February 26, 2001. The letter instructed Dr.

Stotter to contact Dr. Hammond prior to February

26, 2001, to arrange for a police escort if he had

any personal items to pick up. Notice of the letter did

Dr. Stotter alleges that at the same time similar

problems still existed with Dr. Thayayarajans lab. According

to UTSA, however. Dr Thaya

garajan took responsibility for

his lab, but was unable to finish the cleanup because of health-

related issues. Thereafter, Dr. Thayagarajan worked with

UTSA to close his lab in 1999 and retired in 2000

not reach Dr. Stotter until February 28, 2001, two

days after the clean up had already occurred. On

March 7, 2001, UTSA permitted Dr. Stotter to

enter his lab. According to Dr. Stotter, UTSA

discarded all of his personal property that was stored

in his lab.

On April 2, 2001, Dr. Bailey recommended

to Dr. Romo that Dr. Stotters contract be

terminated for good cause. On May 1, 2001, Dr.

Romo sent a letter to Dr. Stotter extending him an

opportunity to meet and discuss the matter. They

met on May 11, 2001. After reviewing the allegations,

Dr. Romo agreed to terminate Dr. Stotters contract

for good cause.

On the same day, Dr. Stotter filed suit in state

court against UTSA, Dr. Bailey, and UTSA Associate

Vice President of Academic Affairs Dr. David

Johnson® alleging a § 1983 procedural due process

claim and seeking a temporary restraining order, a

preliminary injunction, and declaratory relief. A

temporary restraining order issued and the case was

subsequently removed to federal court. On August 7,

2001, a motion for a preliminary injunction was

denied.

Meanwhile, Dr. Stotter invoked the grievance

procedures at UTSA. According to those procedures,

a panel of UTSA tenured professors hear the

grievance in the first instance and make a

recommendation to the Board of Regents, which

then approves, rejects, or amends the hearing

The district court granted Dr. Johnson s motion to dismiss on

qualified immunity grounds. Dr. Stotter did not appeal that

decision and the issue is not before us.

panel’s findings. The Board of Regents is also

required to state in writing the reason for its

decision and send a notice of the decision to the

accused faculty member.

After a four-day hearing, the grievance panel

reached an unanimous decision that there was no

good cause to terminate Dr. Stotters contract.

Nonetheless, on February 14, 2002, the Board of

Regents, with the exception of one abstaining

Regent, voted to terminate Dr. Stotters contract.

On February 20, 2002, the Board of Regents sent a

certified letter to Dr. Stotter explaining that

although it accepted the findings of fact of the

grievance panel, it rejected the conclusion that no

good cause existed for termination.

Dr. Stotter proceeded with his § 1983

procedural due process claim in federal court. He also

filed a separate lawsuit against UTSA, the Board of

Regents, Dr. Bailey, and Dr. Romo alleging equal

protection and First Amendment vioiations

arising out of his termination. The district court

consolidated the two suits. On November 22, 2005, the

district court granted summary judgment in favor of

the defendants, filing a revised order on December

27, 2005, granting the same. On February 27, 2006,

Dr. Stotter filed an untimely notice of appeal, along

with a timely motion to extend the time to file a

notice of appeal. Finding good cause, the district

court granted the motion. This appeal followed.

Il. STANDARD OF REVIEW

We review a district court's summary

judgment ruling de novo, applying the same

standard as the district court. Wyatt v. Hunt

Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002). A

party is entitled to summary judgment only if “the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(e).

On a motion for summary judgment, this court

must view the facts in the hight most favorable to the

non-moving party and draw all = reasonable

inferences in its favor. See Hockman v

Westward Comme ns, L.L.C., 407 F.3d 317,

325 (5th Cir. 2004). In reviewing the evidence,

this court must therefore “refrain from making

credibility determinations or weighing the

evidence.” Turner v. Baylor Richardson Med. Ctr.,

476 F.3d 337, 343 (5th Cir. 2007).

III. Analysis

A. Timeliness of Notice of Appeal

UTSA argues that the district court erred

in granting Dr. Stotter's motion to file an untimely

notice of appeal. We disagree. The district court

entered its amended order of summary judgment

on December 27, 2005. ‘Thus, any notice of appeal

was due on January 26, 2006. See Fed. R. App. P.

4(a))(A). However, Rule 4(a)(5)(A) permits the

district court to extend that time if (1) the party so

moves no later than 30 days after the time

prescribed by Rule 4(a) expires and (2) the party

shows excusable neglect or good cause. On February

27, 2006, Dr. Stotter filed a timely motion to extend

the time for filing a notice of appeal. The district

court granted the motion on the ground that Dr.

Stotter established excusable neglect based on the

fact that his counsel accidentally entered the

incorrect year into her new computer-based calendar.

This court reviews a district courts ruling on

a Rule 4(a)(5) motion based on a determination of

excusable neglect for an abuse of discretion. United

States v. Clark, 51 F.3d 42, 43 n.5 (5th Cir. 1995).

However, this court gives more leeway to a district

courts determination of excusable neglect when the

district court grants the motion for an extension of

time. Midwest Employers Cas. Co. v. Williams, 161

F.3d 877, 879 (5th Cir. 1998).

When evaluating excusable neglect under Rule

A(a)(5), this court relies on the following standard:

The determination is at bottom an

equitable one, taking account all of

the relevant circumstances

surrounding the partys omission.

These include .. . the danger of

prejudice ... , the length of the

delay and its potential impact on

judicial proceedings, the reason for the

delay, including whether it was within

the reasonable control of the movant,

and whether the movant acted in good

faith.

Id. (quoting Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P ship, 507 U.S. 380, 395 (1993)). Given

the leeway granted to district courts under this

standard, the minimal delay and prejudice involved,

and the excuse provided by Dr Stotter, we conclude

that the district court did not abuse its discretion in

granting the motion to extend the time for filing a

notice of appeal.

4‘]

B. Section 1983 - Procedural Due Process Claim

1. UTSA

Dr. Stotter filed his procedural due process

claim pursuant to Title 42 of the United States

Code, Section 1983. Section 1983 provides a private

right of action for damages to individuals who are

deprived of “any rights, privileges, or immunities”

protected by the Constitution or federal law by any

“person” acting under the color of state law

42 U.S.C. § 1983. The Supreme Court has held

that “neither a state or persons acting in their official

capacities are 'persons' under § 1983,” though state

officials in their official capacities, when sued for

injunctive relief, are “persons” under § 1983. Wi//

v. Michigan State Dep't of Police, 491 U.S. 58, 71 &

n.10 (1989); see also Lapides v. Bd. of Regents of the

Univ. Sys. of Georgia, 535 U.S. 613, 617 (2002). This

court has also recognized that state universities as

arms of the state are not “persons” under § 1983.

Laxey v. Louisiana Bd. of Trustees, 22 F.3d 621, 623

n.2 (1994); Texas v. Walker, 142 F.3d 813, 820 n.10

(5th Cir. 1998) (moting specifically that University of

Texas Health Science Center and Regents of the

University of Texas are arms of the state); sce also

Gaby v. Bd. of Trs., 348 F.3d 62 (2d Cir. 2003).

Thus, Dr. Stotter's § 1983 claim, with respect to

U'TSA, 1s invalid.

2. Dr. Bailey

Dr. Stotter argues that Dr. Bailey violated his

procedural due process rights by discarding his

personal property without giving him sufficient

opportunity to retneve it. The district court

conceded that the February 23, 2001 notice letter

was insufficient to give Dr. Stotter sufficient time

to remove any personal! items from his lab prior to

the February 26, 2001 cleanup. We apree. In fact

Dr. Stotter did not even receive the notice Jette:

until after his lab was cleaned and his personal

property allegedly discarded Nonetheless, the

district court granted the motion for urmmary

judgment in favor of the defendants on two

grounds. First, the district court held that because

an adequate post-deprivation remedy wa

available, 1.e., a state conversion claim, Dr. Stotte

could not establish a procedural due proce

violation. Dr. Stotter counters that there is no

adequate post-deprivation remedy available in thi:

case because the defendants are immune from suit

under the Texas Tort Claims Act. See Tex. Civ

Prac. & Rem. Code § 101.021 (2007). Dr. Stotter 3

correct that under Texu: law conversion |}

considered an intentional tort for which the ‘Texa

Tort Claims Act preserves immunity. See Tex. Rives

Barges v. City of San Antonio, 21 S.W.3d 347, 356

57 (Tex. App. 2000). However, we need not

address the issue of whether a_ defendant

entitlement to immunity renders a post-deprivation

remedy unavailable becuuse Dr. Stotter is not

required to establish the unavailability of post

deprivation remedies in this case

Under the VMarratt Hudson doctrine “ai

unauthorized intentional deprivation of property by

a state employee does not constitute a violation of

the procedural requirements of the Due Proc

Clause of the Fourteenth Amendment if a

meaningful postdeprivation remedy for the lo

available.” Hludson vy. Palmer, 468% U.S. 517. 53:

(1984); see also Parratt v. Taylor, 451 U.S. 527 (981)

overruled in part on other grounds hy Daniels \

Wilhams, 474 U.S (27 ()986). ‘The k

‘

word |

unauthorized.” The Supreme Court later clarified

that if the deprivation wis uuthorimed by thi Liale

and the state had an opportunity to provide (pry

type of pre-deprivation remedy, failure to do so

implicates the duc proce clause, Zimermon 4

Burch, 494 U.S. 118. 127°30 (1990). In

Ainermon. thi circuit ha held that

action for deprivation of procedural due

sip} lyiny

4a 68 Ble

Proce }

barred if a tate ha adequate post-deprivation

remedics and the following conditions e

st: C1) the

deprivation must truly have been unpredictable o1

unforcesecable (2) pre deprivation proce

would

have been impossible or impotent to counter the

fate actor particular conduet an

(.5) the

conduct must have heen unauthorized in the

ense that it was not within the officia

or implied authority. Caine v. Hardy, 9438 F.2d 1406

14133 (5th Cir. 1991) len banc). Otherw:

action for deprivation ol procedural] clue

jdt >

not barred under the /éarratl Hudson doctrine

Hiere, the deprivation was both predictable at

ore eeable In fact ria Only Wil iT fP0) ible lO! ty

Bailey to provide u pre-deprivation remedy in th

case, he Attempted to a Oo DS ending Dr Lotte)

y letter giving him an Opporbunmily to remove i}

personal items trom h lab. Morcover, U'TSA a

Ur. Bailey specifically authorized the depri tion

ie | C4 Allen \ fhoma telale té Ly 9 Ct}

Coy 21004) (holding that because personal propert

i cOonbiscated unde! suUtNMority | pri 1)

administrative directive it wa not random

Unauthorized) /srook | Creorgve Count | } (

» 4 l6h (pth Con 1996) (holding t} | mCLIO!

;CCOrdip Ollicial police’ Cano pe ( I f (

(2001) CA court required to rule upon the qualified

immunity issue must consider, then, this threshold

question: Taken in the light most favorable to

the party asserting the injury, do the facts alleged

show the officer's conduct violated a constitutional!

right?’). If the facts do not establish that the

official violated the plaintiff's constitutional rights,

we need not inquire further. See Saucier, 533 U.S. at

201. If they do, the official is nonetheless entitled to

qualified immunity unless the court finds that the

official's conduct was objectively unreasonable in

light of clearly established law at the time of the

state actions at issue. See McClendon, 305 F.3d at

323. To be “clearly established” for purposes of

qualified immunity, “the contours of the right

must be sufficiently clear that a reasonable official

would understand that what he is doing violates

that right.” Johnson v. Johnson, 385 F.3d 503, 524

(5th Cir. 2004) (quoting Anderson v. Creighton, 483

US. 635, 640 (1987)).

Here, the Supreme Court has recognized that

the due process clause protects a person's property

interests in personal property such as real estate,

chattels, and money. Hoth, 408 U.S. at 576. In

Zinermon, the Supreme Court reiterated that some

type of notice is required prior to the authorized

deprivation of one's property. 494 U.S. at 127-28.

However, as the district court correctly concluded,

the notice Dr. Bailey gave Dr. Stotter was

insufficient to satisfy due process because Dr.

Stotter did not receive the notice until after his

personal property was allegedly discarded. Based

on these precedents, a reasonable state official would

understand that discarding Dr. Stotter's personal

property 1n this manner violated his procedural due

wre

process rights and that such conduct is objectively

unreasonable. Thus, we agree that Dr. Bailey is not

entitled to qualified immunity with respect to Dr.

Stotter's procedural due process claim.

C. Equal Protection Claims

Dr. Stotter next argues that the defendants

treated him differently than others similarly situated

in violation of his equal protection rights. In Village

of Willowbrook v. Olech, 528 U.S. 562 (2000), the

Supreme Court recognized an equal protection

claim based on a “class of one.” To establish such

a claim, the plaintiff must show that (1) he or she was

treated differently from others similarly situated and

(2) there was no rational basis for the disparate

treatment. /d@. at 564.7 We agree that Dr. Stotter

has not established that he was treated differently

than others similarly” situated or that any

differential treatment was irrational.

The district court concluded that despite

the dearth of evidence regarding the conditions of

Dr. Thayagarajan's lab. the two labs had similar

hazards and thus, Drs. Stotter and Thavagarajan

were similarly situated However, lor

Thayagarajan initially took responsibility for the

The district court granted summary judgment in

favor of the defendants with respect to the equal protection

claim on the ground that Dr. Stotter did not establish vindictive

animus on the part of the defendants. In doing so, the district

court rehed on fii/ton v. City of Wheeling, 209 F.3d 1005 (7th

Cir. 2000). However, this court has rejected the argument

that all “class of one' equal protection claims require a

showing of vindictive animus. See Mikeska v. City of Galveston

451 F.3d 376, 381 n.4 (5th Cir. 2OO3)

deficiencies of his lab and when his kealth problems

prohibited him from cleaning it, he turned his lab

over to UTSA and retired shortly thereafter. Dr.

Stotter has not offered any evidence to dispute these

facts. In fact, when asked if he knew that Dr.

Thayagarajan cooperated with UTSA to clean his

lab, Dr. Stotter responded at deposition, “I don't

know that.' In contrast, Dr. Stotter made several

unfulfilled promises to clean his iab. Indeed, even

under his version ot the facts, he was given notice on

October 31, 2000, to clean his lab and by the end of

February, 2001, still had not done so. Also.

unlike Dr. Thayagarajan, Dr. Stotter allowed

deficiencies to exist in his office, in addition to his

lab, and when UTSA attempted to remedy the

situation, Dr. Stotter created such a scene that he

was escorted to his car by UTSA police and

advised to leave the premises. There is no

evidence that Dr. Thayagarajan ever physically

resisted efforts to clean his lab. Thus, the two

situations are hardly similar and the confrontation

with campus police alone presents, at the very least,

a rational basis for treating Dr. Stotter difterently.

Accordingly, we conclude that Dr. Stotter’s equal

protection claims lacks ment.

Dr. Stotter also raises an equal protection

claim with respect to his salary. He argues that

the district court ignored this claim. However. a

review of the record reveals that the district court

did address this claim. According to the district court.

any differential in salary was the result of Dr.

Stotters own failure to submit annual reports

required for a salary adjustment. The district

court also noted that all of the correspondence from

Dr. Stotters superiors indicates a willingness to

rectify any legitimate shortfall in his salary. Dr.

Stotter does not offer any evidence to the contrary.

Moreover, an independent review of the record also

reveals that Dr. Stotter has not offered any evidence

comparing his salary to any other individual, let alone

an individual similarly situated. Even if he had, the

failure to file the requisite paperwork for a salary

adjustment would certainly provide a rational basis

for any alleged salary differential. Accordingly, we

conclude that this equal protection claim also lacks

merit.

1). Kirst Amendment Retaliation Claim

Dr. Stotter argues that the defendants

terminated his employment contract in retaliation

for his speech involving matters of public concern in

violation of the First Amendment. The district

court granted summary judgment in favor of the

defendants on the ground that Dr. Stotter was

unable to establish that the speech at issue was a

matter of public concern. We agree.In order to

succeed on a First Amendment retaliation claim, Dr.

Stotter must show that (1) he suffered an adverse

employment decision: (2) his speech involved a

matter of public concern: (3) his’ interest in

commenting on matters of public concern outweighs

his employers interest in promoting efficiency: and

(4) his speech motivated the adverse employment

decis‘on. Wianng v. The Univ. of S. Miss., 451 F.3d

339, 350 (Sth Cir. 2006): Beattie v. Madison County

Sch. Dist., 254 F.8d 595, 601 (5th Cir. 2001):

Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216,

220 (5th Cir. 1999). The district court held that Dr.

Stotter was unable to establish the second clement

because the memo at issue was a private grievance

about wages instead of a matter of public concern.

To determine whether an employees speech

addresses a matter of public concern, this court

has employed two tests, sometimes used in

conjunction with each other. In the first test, this

court evaluates the content, form, and context of a

given statement. Bradshaw v. Pittsburgh Indep. Sch.

Dist., 207 F.3d 814, 818 (5th Cir. 2000): Teague v.

City of Flower Mound, 179 F.3d 377, 383 (th Cir.

1999). The second test is the citizen-employee test:

[Wlhen a public employee speaks not as a

citizen upon matters of public concern,

but instead as an employee upon

matters only of personal interest,

absent the most unusual

circumstances, a federal court is not

the appropriate forum in which to

review the wisdsim of a personne]

decision taken by a public agency

allegedly in reaction to the employee's

behavior.

Conmck v. Mvers, 461 U.S. 138, 147 (1983); see also

finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,

563-64 (Sth Cir. 2003). Under this latter

shorthand” test, this court focuses on whether

the plaintiff “[spokel primarily in his role as a

citizen rather than as an employee addressing

matters only of personal concern.” Fiese/ v. Cherry,

294 F.3d 664, 668 (Sth Cir. 2002). However, the

citizen-employee test can sometimes _ vield

indeterminate results because “(t]he existence of

an element of personal interest on the part of an

emplovee in the speech does not prevent finding that

the speech as a whole raises issues of public

concern.” Dodds v. Childers, 933 F.2d 271, 273 (Sth

Cir. 1991). Thus, “liln cases involving mixed speech,

we are bound to consider the Conzick factors of

content, context, and form, and determine whether

the speech is public or private based on these factors.”

Teague, 179 F.3d at 382.

There has been some confusion in this circuit

regarding mixed speech cases, 1.e., cases in which the

employee speaks on a matter of public concern but

also has a personal interest as well. See Kennedy v.

Vangipahoa Parish Library Bad. of Control, 224 F.3d

359, 367 (5th Cir. 2000) (discussing the history of

mixed speech eases in the this circuit). Neither the

district court nor the parties address the issue of

whether this case involves mixed speech. Dr. Stotter

does argue that a reference to a previously-raised

issue regarding the misuse of his benefits in a

personal memo discussing wages transforms his

entire memo into protected speech. This argument

sounds like a mixed speech argument.

At first glance, it is doubtful that a vague

reference to a previously- raised issue regarding

the alleged misuse of benefits in a four-page memo

that otherwise constitutes a personal grievance

about wages is sufficient to place the entire memo

into the mixed speech genre. However, this circuit

has not been entirely clear on this issue. In Wilson v

UT Health Ctr., 973 F.2d 1263, 1269 (5th Cir. 1992),

this court interpreted Supreme Court precedent as

“removling] from First Amendment protection only

that speech that is made on/y as an employee, and

lelaving] intact protection for speech that is made

both as an employee and as a citizen.” Another

panel of this court criticized the broad language in

Wilson, recognizing that “[tlhe mere insertion of a

scintila of speech regarding a matter of public

concern would make a federal case out of a wholly

private matter fueled by private, non-public

interests.” Teague, 179 F.3d at 382. A third panel of

this court, however, criticized Veague and

reiterated that under Connick, First Amendment

protection is on/y categorically denied to public

employees speaking so/e/y on matters of personal

interest. Aennedy, 224 F.3d at 370 n.13 (citing

Connick, 461 U.S. at 157). Thus, according to that

panel, a mere scintilla of speech regarding a matter

of public concern is sufficient to treat the entire

communication as mixed speech. Jd at 372-73. In

evaluating these cases, a fourth panel of this court, in

an unpublished opinion, reached the same

conclusion. Chavez v. Brownsville Indep. Sch. Dist.,

135 F. Appx 664, 670 (5th Cir. Jun. 15, 2005). We

agree that under Connick, even a mere scintilla of

speech regarding a matter of public concern is

sufficient to treat the entire communication as

mixed speech. Thus, because Dr. Stotter made an

allegation of malfeasance by state officials, which

arguably is an issue of public concern, see Thompson

v. City of Starkville, 901 F.2d 456, 463 (5th Cir. 1990)

(citation omitted), the memo at issue should be

treated as mixed speech.

As recognized by this court in Chavez,

we have used varying approaches with respect

to analyzing mixed speech cases. For example,

some panels have focused on the content-form-context

test and then used the citizen-employee test in the

alternative. See, e.g., Kennedy, 224 F.3d at 375- 76;

Teague, 179 F.3d at 382; Thompson, 901 F.2d at

461-66. Other panels have incorporated the citizen-

employee test into the content portion of the content

farm-context test. See, eg., Harris, 168 F.3d at 222;

Davis v. Hector County, 40 F.3d 777, 788 (Sth Cir.

1994); Dodds, 933 F.2d at 274; Moore v. City of

Ailgore, 877 F.2d 364, 370 (5th Cir. 1989). Still, other

pancls have focused on the citizen-employee test and

used the content-form-context test only to aid in that

analysis. See, e.g., Gillum v. City of Kerrville, 3 F.3d

117, 121 (5th Cir. 1993). Because application of these

varying approaches would lead us tuo the same

conclusion, 1e, that the memo at issue does not

constitute protected speech, we need not decide which

approach is appropriate to use in mixed-speech cases. *

It is undisputed that the memo at issue 1s primarily a

private grievance about wages. Indeed, to support

his claim, Dr. Stotter cites to a single sentence,

buried within his’ four-page memo, in

parenthesis no less, discussing an instruction he

was allegedly given not to file his annual wage

report:

We do recognize that the distinctions between these varying

approaches is somewhat artificial. Indeed, it seems clear that

the question of whether an employee was speaking as a

“citizen” or as an “employee” under the citizen-employee test

is sufficiently covered by the content and context prongs of

the content-form-context test. Thus, we fail to discern any

significant difference between these varying approaches used to

analyze mixed speech cases given that they ultimately ask the

same question. In fact, we have been unable to find a single

case in which the application of these varying tests brought the

pane! to different conclusions. See, e.g... Kennedy, 224 F.3d at

375 (Though we are not obligated to apply the citizen-

employee test In mixed speech cases, we observe that it

produces an identical conclusion.); Zeague, 179 F.3d at 383

(“Utilizing the simpler ‘citizen versus employer’ approach

produces ...the same result.”).

Since that time, no one in the Provost's Office

has modified or clarified those instructions,

despite requests from me and/or from the

EPS director for some solution of

the original administrative issues I raised

(concerning my appointment status and

administrative misuse of my benefits at

UTSA from 1989- 1991 and then continuing

through 1993).

Based on this passing reference to an issue he

apparently raised years ago, which he never

substantiates nor explains, Dr. Stottcr maintains that

his entire memo is protected speech. In evaluating

the content, form, and context of this memo, it

primarily, if not exclusively, is nothing more than an

employer employee dispute about wages.

Indeed, the title of his memo 1s

“Compression Salary Adjustment Beginning AY

2000-1 and Related Matters” and the content deals

exclusively with Dr. Stotter's concern over not

receiving a “long overdue review of [his] salary

status.” Internal personne!] disputes and

management decisions are rarely a matter of public

concern. Branton v. City of Dallas, 2772 F.3d 730, 739

(5th Cir. 2001). There is simply no evidence that in

writing this memo, Dr. Stotter was trying to

publicize allegations of corruption. In fact, he

does not even complain about the purported

misuse of benefits in the memo, only referring to

the issue in passing as an explanation for his failure

to produce his annual reports. He further notes in

the memo his hope that “we cam separate the

salary issues from the other problems and initially

resolve the salary question - quickly and amicably, for

many reasons.’ We agree with the district court

that at all times, “Dr. Stotter was speaking as an

aggrieved employee, about a classic employment

issuc: compensation.” In short, Dr. Stotter is

attempting to take a personal grievance about his

wages and turn it into a First Amendment

retaliation claim based on some vague reference to a

previously-raised issue regarding his benefits

“Post hoc metamorphoses fall short of the

constitutional threshold.” Bradshaw, 207 F.3d at

818. Accordingly, we conclude that Dr. Stotter':

Kirst Amendment retaliation claim lacks merit.

IV. CONCLUSION

lor the reasons stated herein, we affirm the

district court's judgment with respect to the equal

protection and First Amendment retaliation claims

and reverse the district court's judgment with

respect to the § 1983 procedural due process

claim. Accordingly, with respect to U'I'SA, the Board

of Regents, and Dr. Romo, we affirm the district

court's judgment as to all claims against them; with

respect to Dr. Bailey, we remand the procedural

due process claim to the _ district court for

proceedings consistent with this opinion.

AFFIRMED, IN PART; REVERSED, IN PART; and

REMANDED.

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