Petition for Writ of Certiorari — Bolton v. City of Dallas, Texas (No. 08-704)

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\d | No. 08-__08-7 94 NOV 26 2008

; OFFICE OF THE CLERK

Jn The William K. Suter, Clerk

Supreme Court of the Anited States

TERRELL BOLTON,

Petitioner,

THE CITY OF DALLAS, TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

€

PETITION FOR A WRIT OF CERTIORARI

KATHERINE L. BUTLER

BUTLER & HARRIS

1007 Heights Blvd.

Houston, TX 77008

(713) 526-5677

ERIC SCHNAPPER*

School of Law

University of Washington

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

*Counsel of Record ae

Counsel for Petitioner

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

(1) In an action under 42 U.S.C. § 1983, may a

city or other local government body be held liable for

a constitutional violation because the official who

committed that violation exercised the final authority

to make the decision in question?

(2) In an action under 42 U.S.C. § 1983, does

the existence of a written government standard

forbidding a constitutional violation preclude the

imposition of liability on a city or other local govern-

ment body for such a violation by its officials?

PARTIES

The parties to this proceeding are set forth in the

caption.

ill

TABLE OF CONTENTS

Page

Questions Present ........05....csevcescadsesnvecssesssnonvens i

IN iii iccsediehassticca cites coeds uceemasi cd pcapienetapmies il

Er EE oikx i aiiseextieehvintunes Vv

oii sares gids unio taedscniadoentanmeeseiaae: 1

Statement of Jurisdiction ...................0.csccscceseoeees 1

Statute and Charter Provisions Involved ........... 2

CIS GE TI oni sc sais inp eedewssviccsnves 2

Reasons for Granting the Writ ....................:..:006 7

I. The “Deeply Divided” Decisions of This

Court Have Created Conflict and Uncer-

tainty Among The Lower Courts............... 7

II. There Is A Deeply Entrenched Inter-

Circuit Conflict Regarding The Standard

for Determining Who Is A “Policymaker”

Exe A SCRRth BES C0 is. cccicevcecaisetiasicnens 12

A. The Majority View: Municipalities

Liable for Actions by Officials Exer-

cising Final Decisionmaking Author-

RR ROE ONO EMER AD NN An Es Let Ot ES 15

B. The Minority View: More Than Final

Decisionmaking Authority Required..... 24

C. The Conflict Is Deeply Entrenched

and Well Recognized....................:eeceeee 28

III. There Is An Inter-Circuit Conflict Re-

garding The Significance of A Written

Standard Forbidding A Constitutional

EE baka Sheen Ria eats 33

TABLE OF CONTENTS — Continued

Page

A. There Is A Three-Way Division Among

The Lower Courts Regarding The Sig-

nificance of Such A Standard................ 33

B. The Fifth and Seventh Circuit Stan-

dard Is Inconsistent With The Pur-

pose and History of Section 1983........ 39

NN is citi atccusbenianvauh ciiepd nate muicenana baleen 41

APPENDIX

Opinion of the Court of Appeals for the Fifth

RG PIE F , I nisicss seninsnsncencaiieceestorsesleveverins la

Order of the District Court for the Northern

District of Texas, August 17, 2007....................08. 15a

Opinion of the Court of Appeals for the Fifth

Cree, RI FT Te iach css ines cecccatacecccceces 30a

Order of the District Court for the Northern

District of Texas, September 20, 2005..............:...39a

Order of the Court of Appeals for the Fifth

Circuit Denying Rehearing En Banc, Sep-

tember 9, 2008....... Rane EN eM SPN! Pen ROTC? 46a

Statute and Charter Provisions Involved................ 48a

TABLE OF AUTHORITIES

Page

CASES: |

Andrews v. City of Philadelphia, 895 F.2d 1469

as cased erdemeniedeeanons 17, 18

Angarita v. St. Louis County, 981 F.2d 1537

I SIU otins ince ncientrepeserrvacanebomsonah geal 27, 37

Anthony v. City of New York, 339 F.3d 129 (2d

I I cscs peices aan tana eae 28

Arendale v. City of Memphis, 519 F.3d 587 (6th

Te ERR COR LOR Oe eet NN HRC Te 19

Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992) ..... passim

Barnes v. City of Cincinnati, 401 F.3d 729 (6th

I IE csts dais nniscathnndiasnlaieniasaimanianaiamiimaetbea acai 19, 20

Barrow v. Greenville Ind. Sch. Dist., 480 F.3d

eT ee Ee etd ccikas iene 38

Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.

BN I PI ici iisisiiccrnsiniceimcndnsdeeae 13, 14, 15, 29

Bennett v. City of Slidell, 735 F.3d 861 (5th Cir.

ee I I ois etiedntinisncisnsgidurcttucmmienaa 6, 14, 28, 30

Board of County Commissioners of Bryan

County v. Brown, 420 U.S. 397 (1997) .............:00 10

Bonner v. City of Prichard, 661 F.2d 1206 (11th

Ce TS Gi ain cticces cect ntnieicsienccmisiictetiin 29

Brown v. City of Fort Lauderdale, 923 F.2d

PORT Te Ge, Bice ite tinntntadnntbnsns 23

Burkes v. Klauser, 185 Wis.2d 308, 517 N.W.2d

SE CD sities iiininniniindécnicuniiee ee eee 30

TABLE OF AUTHORITIES —- Continued

Page

City of Canton, Ohio v. Harris, 489 U.S. 378

a i rece aes aa ea 2,10

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

BF CIO) iivscsacncsvssnss Splsialadess cdhbuccscasaea stlinlvarimaeuwedians 8,9

City of St. Louis v. Pes: 485 U.S. 112

CAEN ii inh siccetarsdicg eb vuchs Wisietinbeishiailanieawedeeseneih cesta passim

Clue v. Johnson, 179 F.3d 57 (2d Cir. 1999) .............. 28

Cordero v. Jesus-Mendez, 867 F.2d 1 (1st Cir.

NU i ca a es, 16

Crowley v. Prince George’s County, Maryland,

S90 F.2d G83 (4th Cir. 1969) ..........0...coseseseovecses 26, 27

Davison v. City of Minneapolis, Minnesota, 490

ee OO (Ee Ce, BT) nic cicccsvesesscccesseesesesens aaa 27

Flanagan v. Munger, 890 F.2d 1557 (10th Cir.

ERR Mee ene ve neva eo ee Eee ne PoE 21, 22

Gianessi v. City of Pekin, 52 Fed.Appx. 265 (7th

RRR Ti BONGO OP Ne TDA FOOTE AEA oO 25

Greensboro Prof'l Fire Fighters Ass’n, Local

3157 v. City of Greensboro, 64 F.3d 962 (4th

Re a ais eateries 26, 27

Grenetzke v. Kenosha Unified Schooi District

Nea. 1, 274 F.3d 464 (7A Git. BOG1) ccc ciscscccccccsesess. 26

Gronowski v. Spencer, 424 F.3d 285 (2d Cir.

NIE io sissies dciccicerah cua eriiaacaiiusie uhiandepionaeieees 16, 28

Harrington v. Almy, 977 F.2d 37 (ist Cir. 1992)......15, 16

Hyland v. Wonder, 117 F.3d 405 (9th Cir. 1997)........ 20

TABLE OF AUTHORITIES — Continued

Page

Jeffes v. Barnes, 208 F.3d 49 (2d Cir. 2000)............... 17

Lawshee v. Simpson, 16 F.3d 1475 (7th Cir.

TEE TERT ER MEP TEE LE LENE RE! IEE See ORT RT 38

Lucas v. O’Loughlin, 831 F.2d 232 (11th Cir.

RE. sissies postin ibe sas buh acadude pasa bansoeds etiniigdabaaniees 23

Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004).....20, 34, 35

Martinez v. City of Opa-Locka, Florida, 971

P.26 T08 (Lith Cir. 1G). ..1..ccssscscocevess. 22, 23, 35, 36

McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005) ...... 18

McNeese v. Board of Education, 373 U.S. 668

SINNER <0 civics ts duds isucanebil ced albino eeentnanTedirasdutctinnn 40

Monell v. Department of Social Services of City

"ee ae BER 2k: | ne passim

Monroe v. Pape, 365 U.S. 167 (1961) ................... 39, 40

Mullins v. City of Huntsville, Ala., 785 F.2d

RR RH scoala nic ei cnkicctanetinincedveesnestintens 30

Patsy v. Board of Regents of the State of Flor-

Oy TE Fee, Se CIE oan sci ccrcesenecesorimcenyeveniensess 40

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

i ahaa ine egioneh abun 8,9, 10, 14, 24

Radic v. Chicago Transit Authority, 73 F.3d 159

SI I eae ce iia corals ceancenadittsalaccemorai 38

Randle v. City of Aurora, 69 F.3d 441 (10th Cir.

toh iistavin tea te ands tognieualicedixscebaswncdismmacsee’ 36, 37

Rasche v. Village of Beecher, 336 F.3d 588 (7th

ee Pe ric dice vcwcdcatenbisairpebsninuaidekimassuribimcaiaeieakeeoes 25

TABLE OF AUTHORITIES — Continued

Page

Rivera-Torres v. Velez, 341 F.3d 86 (1st Cir.

PR ivcteskssviatens lates een eee ne 16

Rookard v. Health and Hospitals Corp., 710

F.O6 4h OG Cr Se icici 17, 28

Schneider v. City of Atlanta, 628 F.2d 915 (5th

CoP SI cians cane 14, 29, 30

Shehee v. City of Wilmington, 67 Fed.Appx. 692

CI Ea ii isticch icennaesansoneiandernionenemacie cae! 19

Small v. Inhabitants of City of Belfast, 796 F.2d

S06 (ime Cae Fe Giitictctdsintinenoea 29

Solomon v. Philadelphia Housing Authority,

143 Fed. Appx. 447 (3d Cir. 2005) .....c.cesceseeeeees 17, 18

Starrett v. Wadley, 876 F.2d 808 (10th Cir.

DE iisinicisrasrcateciscamenae ee 20, 21

Templeton v. Bessemer Water Service, 154

Fed.Appx. 799: (11th Cir. 2005)... <cccccccccessssecescsesss Ze

Town of Orangetown v. Magee, 88 N.Y.2d 41,

GOS FU Bek FR) CR asics cv vevecntcicccccantnashcvnametaens 24

Ware v. Unified School District No. 492, 881

Beh DOG CAR Cae, BD ana vinseinccecceelsctcicsiectaswsssneesens 21

Williams v. Butler, 863 F.3d 1398 (8th Cir.

ROE) LO NED i vivctccensacencttineee ae 28

Williams-El v. Johnson, 872 F.2d 224 (8th Cir.

RD isinccxssritwriin incinerate ae 37

CONSTITUTION:

U.S. Comet. ommend. FY oc ic. ccccicsicscsstsscie csc

TABLE OF AUTHORITIES — Continued

Page

STATUTES:

I a sci eeeusidwnavncemnunvitineioriaveennins 1

I I dc iss oncdsinvdenyevichoubooseecsosenssexeurs passim

OTHER AUTHORITIES:

1 J. Cook and J. Sobieski, Jr., Civil Rights

Petons, DOr. B.OGLSI 4) (ZOO) .........cecccceccsccscrveecesss 31

J. Ryland, Constitutional Law — Auriemma uv.

Rice: The Seventh Circuit’s Narrow Construc-

tion of $1983 Municipal Liability, 24

PETG) LAUOY. LEA CIGGS) ccccicsesorsescscccvesssecesccscees 32

Peter Schuck, Municipal Liability Under

Section 1983: Some Lessons from Tort Law

and Organization Theory, 77 Geo.L.J. 1753

GR ETERS ESSN REE Re OY 11

S. Cushman, Municipal Liability Under $ 1983:

Toward A New Definition of Municipal

Policymaker, 34 B.C.L.Rev. 693 (19938)............ 11, 31

The Supreme Court, 1987 Term, 102 Harv.L.Rev.

SEED adacpscassesvessssevuvees eugnidlabsvieibeld abet cue sbleamanabs 11

Patias City Charter, ch. TIT, § 16 ............cccccsccsssssccscsees 4

Petitioner Terrell Bolton respectfully prays that

this Court grant a writ of certiorari to review the

judgment and opinion of the United States Court of

Appeals entered on August 7, 2008.

OPINIONS BELOW

The August 7, 2008 opinion of the court of ap-

peals, which is reported at 541 F.3d 545 (5th Cir.

2008), is set out at pp. la-14a of the Appendix. The

September 9, 2008, order of the court of appeals

denying rehearing en banc, which is not reported, is

set out at pp. 46a-47a of the Appendix. The August ..

17, 2007 decision of the district court, which is unoffi-

cially reported at 2007 WL 2381253 (N.D.Tex. 2007),

is set out at pp. 15a-29a of the Appendix. The Decem-

ber 7, 2006 opinion of the court of appeals, which is

reported at 472 F.3d 261 (5th Cir. 2006), is set out at

pp. 30a-38a of the Appendix. The September 20, 2005

decision of the district court, which is unofficially

reported at 2005 U.S. Dist. LEXIS 20543 (N.D.Tex.

2005), is set out at pp. 39a-45a of the Appendix.

STATEMENT OF JURISDICTION

The decision of the court of appeals was entered

on August 7, 2008. A timely petition for rehearing en

banc was denied on September 9, 2008. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTE AND CHARTER

PROVISIONS INVOLVED

The statute and charter provisions involved are

set forth in the Appendix.

STATEMENT OF THE CASE

In Monell v. Department of Social Services of City

of N.Y., 436 U.S. 658 (1978), this Court held that a

city’ can be held liable for a constitutional violation

by an official “whose edicts or acts may fairly be said

to represent official policy.” 436 U.S. at 694. Under

Monell and its progeny the scope of municipal liabil-

ity turns on the definition of what constitutes “policy”

and who is a “policymaker.” This Court’s decisions on

that issue have been “deeply divided.” City of Canton,

Ohio v. Harris, 489 U.S. 378, 385-86 (1989). This case

presents two major questions that have divided the

lower courts regarding the scope of municipal liability

under Monell.

From 1999 until 2003 petitioner Bolton, who had

risen from within the ranks of the Dallas Police

Department, was the Police Chief of Dallas, Texas. In

August 2003 the Dallas City Manager fired Bolton.’

' The same standard applies to claims against counties,

school boards, and other local government bodies. For simplicity

the petition refers to claims against cities.

* The city agreed that Bolton had not been fired for cause.

(App. 17a, 3la, 40a).

Bolton did not challenge his removal from the posi-

tion of Chief of Police, but asserted that he was

entitled to continued employment as a police officer,

and that he therefore should have been demoted to a

lower rank within the Department rather than being

dismissed. (App. 2a, 16a). Belton commenced this suit

against the city of Dallas and the City Manager,

alleging that’ his dismissal was unconstitutional.

Bolton contended that under the Dallas city charter

he had a property interest in continued employment

as a police officer, and that by dismissing him (rather

than demoting him) the city had violated the Due

Process and Equal Protection Clauses of the Four-

teenth Amendment.

Dallas moved for summary judgement, arguing

inter alia that Bolton did not have a constitutionally-

protected property interest in continued employment

in the Police Department. In September 2005 the

district court granted summary judgment on that

ground. (App. 41la-44a). In the first appeal in this

litigation, the Fifth Circuit overturned that district

court decision, holding that the Dallas charter indeed

created a constitutionally-protected property interest

in further employment. (App. 33a-36a). The Fifth

Circuit dismissed the claim against the City Man-

ager, however, holding that he was entitled to quali-

fied immunity. (App. 37a-38a).

On remand Dallas again moved for summary

judgment, arguing that under this Court’s decisions

in Monell and its progeny the city itself could not be

held liable even though the City Manager himself had

commited the asserted constitutional violation when

he dismissed Bolton. The court below acknowledged

that the City Manager’s action in dismissing Bolton

was final because the city charter expressly forbade

the Dallas City Council from interfering in any way

with the City Manager’s absolute authority to fire a

department head. The relevant charter provision

expressly gives the City Manager sole control over

both “removal from ... office” and “removal from ...

employment” of any executive rank official such as

the Chief of Police. (Dallas City Charter, ch. ITI, § 15).

The city nonetheless argued that the city was not

legally responsible for the action of the City Manager

in dismissing Bolton. “Defendants ... contend that if

[the City Manager’s] decision to terminate Bolton was

wrong, it was not the decision of the City, and the

City cannot be held liable under section 1983.” (App.

23a). The district court sustained that contention and

again granted summary judgment in favor of the city.

(App. 20a-28a).

The Fifth Circuit affirmed. The court of appeals

acknowledged that under the Dallas city charter the

City Manager had been given the final authority to

decide to fire the Chief of Police as well as certain

other high ranking city officials. (App. 2a, 4a, lla,

12a). The dispositive issue in the litigation below was

whether that type of absolute authority falls within

what Monell and its progeny deemed to be “policy-

making” authority.

First, the court of appeals reasoned that whether

a city is responsible for the actions of a municipal

official turns on whether the official’s powers are

“legislative” or merely “executive” in nature. Only

“legislative” actions, it held, constitute policy under

Monell and its progeny. (App. 9a, 11a-12a).

The repeated references {in Texas statutes]

to the city manager’s responsibility for “ad-

ministration” make clear that the position is

executive rather than legislative; that is,

state law .. does not give to city managers

“the responsibility for making law or setting

policy in any given area of a local govern-

ment’s business.” [City of St. Louis v.] Pra-

protnik, 485 U.S. [112,] 125 [(1988) (plurality

opinion)].

(App. lla-12a). Although the Dallas city charter gave

the city manager “final decisionmaking authority”

regarding whether, when, or for what to fire a Chief

of Police or any other executive rank official, that

delegated authority was not “policymaking authority”

because “state and local law show that the city man-

ager is an executive and administrative official.”

(App. lla). In the Fifth Circuit’s view, dismissal

decisions are executive or administrative in nature;

thus the delegation of the City Manager of final

authority to make that type of decision did not consti-

tute a delegation of “policymaking” authority. (App.

12a).

The Fifth Circuit acknowledged that other cases

interpreting “policymaking” authority under Monell

draw no such distinction between legislative and

executive positions or actions, but instead impose

liability for the actions of municipal officials that are

final and unreviewable. The panel emphasized,

however, that the Fifth Circuit had expressly and

repeatedly disapproved the decisions adopting that

less restrictive standard.

[I]n this circuit, “ ... ‘we rejected the line of

authority ... which would permit policy ... to

be attributed to the city itself by attribution

to any and all officers endowed with final

power or authority.” Jett [v. Dallas Inde-

pendent School District, 7 F.3d 1241,] 1248

((5th Cir. 1993)] (quoting Bennett v. City of

Slidell 735 F.2d 861, 862 (5th Cir. 1984) (en

banc)).... The finality of an official’s action

does not therefore automatically lend it the

character of a policy.

(App. 9a-10a) (emphasis added).

Second, the court of appeals reasoned that even if

the City Manager were a policymaker with regard to

employment decisions, the city still would not have

been legally responsible for action of the City Man-

ager in firing Bolton because that dismissal, although

it might violate the Constitution, also violated the

Dallas city charter.

Chapter XII, § 5 of the Charter ... prohibits

the specific action taken by [the City Man-

ager]. Thus, absent some contrary custom

not shown here, [the City Manger’s] action

clearly does not represent final policy with

respect to the removal of city officials like

Bolton. It is the Charter that announces the

City’s policy in this regard.

(App. 13a).

Bolton filed a timely petition for rehearing en

banc. The petition was denied on September 9, 2008.

REASONS FOR GRANTING THE WRIT

I. THE “DEEPLY DIVIDED” DECISIONS OF

THIS COURT HAVE CREATED CONFLICT

AND UNCERTAINTY AMONG THE LOWER

COURTS

This case presents two major inter-circuit con-

flicts regarding the standard governing when a city

may be held liable in an action under section 1983.

Both of those conflicts are rooted in the deeply di-

vided decisions of this Court.

This Court’s decision in Monell v. Department of

Social Services of City of New York, 436 U.S. 658

(1978), “attempted only to sketch so much of the

§ 1983 cause of action against a local government as

is apparent from the history of the 1871 [Civil Rights

Alct and our prior cases, and ... le[ft] further devel-

opment of this action to another day.” 436 U.S. at 695.

Monell held that a city is liable for constitutional

violations by an official “whose edicts or acts may

fairly be said to represent official policy,” 436 U.S. at

694, but prowded no guidance as to what would

constitute a policy or policymaking. Justice Powell

noted that under the Court’s opinion — which he

joined — “[t|here are substantial line drawing prob-

lems,” and that “{dlifficult questions nevertheless

remain for another day.” 436 U.S. at 713. Thirty years

later, the day on which those questions and problems

would be resolved has not yet arrived.

This Court quickly recog: zed the uncertainty

generated by Monell. Two years after that decision it

observed that “the contours of municipal lability

under § 1983 ... are currently in a state of evolving

definition and uncertainty.” City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 256 (1981). In Pembaur

v. City of Cincinnati, 475 U.S. 469 (1986), the Court

was unable to agree on the standard for distinguish-

ing a policy (or policymaking) from other acts of

municipal employees. “(T]he majority splintered into

three separate camps on the ultimate theory of mu-

nicipal liability, and the case generated five opinions

in all.” City of St. Louis v. Praprotnik, 485 U.S. 112,

143 (1988) (Brennan, J., concurring); see id. at 123

(“in Pembaur ... we undertook to define more precisely

when a decision on a single occasion may be enougli to

establish an unconstitutional municipal policy.... [T]he

Court was unable to settle on a general formulation.”)

(plurality opinion); Pembaur, 475 U.S. at 482-83

(plurality opinion), 485-87 (White, J., concurring), 487-

90 (Stevens, J., concurring), 490-91 (O’Connor, J.,

concurring), 492-502 (Powell, J., dissenting).

Two years later, now a full decade after Monell,

five members of the Court recognized that the

standard governing municipal liability was still “in a

state of evolving definition and uncertainty.” Praprot-

nik, 485 U.S. at 120 (plurality opinion), 167 (Stevens,

J., dissenting) (quoting Newport); see 485 U.S. at 125

n.2 (plurality opinion) (municipal liability jurispru-

dence “a body of law that is already so difficult.”).

The definition of municipal liability mani-

festly needs clarification, at least in part

to give lower courts and litigants a fairer

chance to craft jury instructions that will not

require scrutiny on appellate review....

The Courts of Appeals have already diverged

in their interpretation of [Pembaur].... Today,

we set out again to clarify the issue that we

last addressed in Pembaur.

485 U.S. at 121, 124 (plurality opinion). Clarification,

however, was not readily to be had. The Court was

again unable to agree on a standard. As in Pembaur,

the divergent opinions proposed three different

standards. 485 U.S. at 124-32 (plurality opinion),

132-47 (Brennan, J., concurring), 147-73 (Stevens, J.,

dissenting).

The plurality opinion criticized the standard in

Justice Brennan’s concurring opinion as “serv[ing]

primarily to foster needless unpredictability in the

application of § 1983.” 485 U.S. at 131. The plurality

objected that the standard proposed by Justice Ste-

vens “is too imprecise to hold much promise of consis-

tent adjudication.” 485 U.S. at 125 n.2. Any effort to

delineate a clear standard for municipal liability, the

plurality reasoned, was confounded by a “conun-

drum,” conceding that “(ijt may not be possible to

draw an elegant line.” 485 U.S. at 126-27. The limited

“suidance” offered by the plurality was apparently

misunderstood by Justice Brennan, who saw in it

implications which the plurality responded were not

“necessary or correct.” 485 U.S. at 130. The plurality

suggested that “refinements of [its articulated] prin-

ciples may be suggested in the future.” 485 U.S. at

127.

In the twenty years since Praprotnik, no such

future refinements have been forthcoming from this

Court. Although the Court has dealt with other

issues, it has not returned to the fundamental ques-

tion of what constitutes a policy, and policymaking,

under Monell. A year after Praprotnik a majority of

the Court conceded that its previous decisions had

been “deeply divided.” City of Canton, Ohio v. Harris,

489 U.S. 378, 385-86 (1989). In 1997 three members

of the Court observed that Monell “haf{d] generated a

body of interpretive law that is so complex that the

law has become difficult to apply.” Board of County

Commissioners of Bryan County v. Brown, 420 U5S.

397, 431 (1997) (Breyer, J., dissenting). “It is not

surprising that results [in the lower courts] have

sometimes proved inconsistent.” 420 U.S. at 435

(citing conflicting results in the courts of appeals).

It was readily apparent that the divergent opin-

ions in Pembaur and Praprotnik would lead to confu-

sion among the lower courts.

The divided opinion in Praprotnik marks the

continuing inability of the Court to complete

its self-appointed task of defining a set of.

municipal employees whose isolated acts

may lead to municipal liability.... Justice

O’Connor’s opinion fails to provide clear

guidance. First, it failed to define a “policy-

maker.” ... [L]ike Justice O’Connor’s opinion,

Justice Brennan’s provides less certainty

than one might hope.

The Supreme Court, 1987 Term, 102 Harv.L.Rev. 320,

321, 326-27 (1988).

[Praprotnik] only made matters worse....

[T]his pattern of divisive, inconclusive deci-

sions ... lacks the transparency, accessibility,

and congruence with its underlying purposes

that any legal standard ought possess. Its

indeterminacy in turn makes case outcomes

seem manipulable, unprincipled, and arbi-

trary....

Peter Schuck, Municipal Liability Under Section

1983: Some Lessons from Tort Law and Organization

Theory, 77 Geo.L.J. 1753, 1754-55 (1989).

In the years since Praprotnik commentators have

tracked the growing confusion and conflicts among

the lower courts. “(T]he contrasting views expressed

by circuit courts about when policymakers have

delegated their policymaking authority and whether

certain officials are per se policymakers demonstrate

that Praprotnik has proven to be an unsuccessful

guide.” S. Cushman, Municipal Liability Under

$ 1983: Toward A New Definition of Municipal Poli-

cymaker, 34 B.C.L.Rev. 693, 694 (1993). Lower court

judges have repeatedly expressed their frustration

with this lack of clarity.

Decisions of the other courts of appeals on

this subject are so varying that there is little

point in canvassing them. A series of frac-

tured opinions from the Supreme Court gave

comfort to almost every position.

Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992).

This petition presents the two most important

unresolved questions concerning municipal liability

under Monell. This case is a particularly appropriate

vehicle for addressing those questions because, like a

majority of the lower court decisions in which those

questions have arisen, the underlying dispute in this

instance concerns a violation of the constitutional

rights of a city employee.

Ii. THERE IS A DEEPLY ENTRENCHED

INTER-CIRCUIT CONFLICT REGARDING

THE STANDARD FOR DETERMINING

WHO IS A “POLICYMAKER” IN A SEC-

TION 1983 CASE

The most widespread post-Praprotnik conflict

among the lower courts concerns the standard for

identifying the city officials for whose actions the city

itself is legally responsible. A majority of the circuits

hold that, at least in the employment context, a city

is liable for the actions of whichever city official or

agency has the final authority — not subject to further

review by other city officials — to make the decision in

question, e.g. to fire a particular worker. (See pp. 15-

24, infra). The minority view imposes liability on cities

for actions of officials with such final decisionmaking

authority only if they also possess certain additional

power, such as (in the Fifth Circuit) officials who

exercise “legislative power.” (See pp. 24-28, infra).

This conflict has given rise to a concomitant

semantic dispute. That disagreement derives from

the portion of the decision in Monell which used the

(there undefined) term “policy” to characterize the

actions for which cities would be liable under section

1983. In the majority circuits an official who exercises

final decisionmaking authority is characterized as

making “policy” and is referred to as a “policymaker.”

In the minority circuits, on the other hand, only an

official who has the requisite additional power is

labeled a final “policymaker”; officials who lack that

special power are called mere final “decisionmakers.”

(See App. 7a). Thus an official such as the City Man-

ager in the instant case would be characterized as a

policymaker under the standard in most circuits, but

not under the Fifth Circuit’s definition of a policy-

maker.

In the years immediately following Monell, the

circuit courts that reached this issue initially agreed

upon the majority final decisionmaking authority

standard. In 1984, however, the Fifth Circuit rejected

that standard in a sharply divided en banc decision.

Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984)

(en banc). The Bennett majority recognized that the

Fifth Circuit itself had in the past applied the final

authority standard, citing in particular that court’s

earlier decision in Schneider v. City of Atlanta, 628

F.2d 915 (5th Cir. 1980). 728 F.2d at 766. The court

noted as well that “[o]ther circuits have followed this

rationale,” citing decisions in the Second, Ninth and

Eleventh Circuits. 728 F.2d at 767. But Bennett

established for the Fifth Circuit a new more restric-

tive standard, limiting liability to the final actions of

officials who held certain types of power (denoted

“policymaking” power). The en banc court in Bennett

expressly

rejected the line of authority, discussed in

[the portion of the opinion referring to prece-

dents in the Second, Ninth and Eleventh

Circuits] and represented in particular by

our opinion in Schneider ... which would

permit policy ... to be attributed to the city

itself by attribution to ... [a] city officer en-

dowed with final ... power or authority.

Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.

1984) (en banc).

This Court’s subsequent decisions in Pembaur

and Praprotnik did not resolve this conflict. To the

contrary, as the Seventh Circuit has observed, this

Court’s decisions, rather than providing clear guid-

ance on this pivotal question, instead “gave comfort to

almost every position.” Auriemma v. Rice, 957 F.2d

397, 400 (7th Cir. 1992). Since Praprotnik the Fifth

Circuit has reaffirmed its express rejection of the

“line of authority” imposing liability for the decisions

of officials with final decisionmaking authority, most

recently in the decision in the instant case. (App. 9a-

10a). In the last two decades the conflict that origi-

nated in Bennett has spread and deepened; today this

recurring legal issue has been addressed by eleven of

the twelve geographical circuits, with widely diver-

gent results.

A. The Majority View: Municipalities Li-

able for Actions by Officials Exercising

Final Decisionmaking Authority

Seven circuits and the highest court of one state

hold that a city is liable under Monell for the actions

of a municipal official whose employment (or other)

decisions are final, not subject to review by any other

city official or agency.

The First Circuit has repeatedly held that a city

is liable if the city official with final decisionmaking

authority takes an employment action that violates

the Constitution. In Harrington v. Almy, 977 F.2d 37

(lst- Cir. 1992), an opinion joined by then Judge

Breyer, a City Manager fired the plaintiff when he

refused to agree to an unconstitutional condition for

continued employment.

[A] single decision can be a policy for Monell

purposes ... if it is made by the official

charged with the final responsibility for

making it under local law.... [The City Man-

ager] could be found by a finder of fact to be

the decisionmaker possessing final authority

with respect to employment determinations

such as the type of [conditions of employ-

ment].

977 F.2d at 45. The First Circuit applied that rule as

well in Cordero v. Jesus-Mendez, 867 F.2d 1 (1st Cir.

1989), despite the fact that the city lawmakers clearly

did not agree with the action in question. In Cordero

a newly elected mayor fired several dozen city em-

ployees because they were members of the other

political party, the very party that continued to

control the city’s Municipal Assembly. 867 F.2d at 4-5.

The court of appeals nonetheless held that under

Monell the city was liable for the mayor’s actions

because of their finality.

The Mayor ... is one “whose edicts or acts may

fairly be said to represent official policy.” Un-

der Puerto Rico law, one of the express powers

given to mayors of municipalities is: “To ap-

point all the officials and employees of the

municipal executive branch and remove

them from office....”

867 F.2d at 7 (quoting Monell). In Rivera-Torres uv.

Velez, 341 F.3d 86 (1st Cir. 2003), the First Circuit

explained that because a mayor’s action in dismissing

city workers was final, the mayor’s employment

decisions “ipso facto ‘constitute the official policy of

the municipality.’” 341 F.3d at 103 (quoting Cordero).

The Second Circuit also applies this final deci-

sionmaking authority standard. In Gronowski uv.

Spencer, 424 F.3d 285 (2d Cir. 2005), the mayor of

Yonkers laid off the plaintiff because she had supported

a political opponent. The city was held liable for that

action because the mayor had final authority to hire

and fire.

Where a city official “has final authority over

significant matters involving the exercise of

discretion,” his choices represent official pol-

icy.... [The mayor’s] actions undoubtedly rep-

resent government policy. Because he has

final authority over hiring and firing deci-

sions, which are discretionary matters, his

decisions in this area constitute the munici-

pality’s final actions.

424 F.3d at 296-97 (quoting Rookard v. Health &

Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)). Simi-

larly, when a sheriff led a campaign of retaliation

against a corrections officer who had cooperated with

the FBI, the Second Circuit held that the county was

legally responsible for that action because

no provision of State or local law ... requires

a sheriff to answer to any other entity in the

management of his jail staff with respect

to the existence or enforcement of a code of

silence.

Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000).

In the Third Circuit an official is a policymaker if

he or she “has final, unreviewable discretion to make

a decision or take an action.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). The

Third Circuit reiterated this standard in Solomon uv.

Philadelphia Housing Authority, 143 Fed.Appx. 447,

456 (3d Cir. 2005), a decision joined by then Judge

Alito.’ In McGreevy v. Stroup, 413 F.3d 359 (3d Cir.

2005), the Third Circuit applied that standard to hold

a school district liable because a school superinten-

dent had retaliated against the plaintiff by giving her

an adverse performance rating.

[T]he Pennsylvania Code ... makes clear that

the superintendent is the final policymaker

over ratings determinations. [The Code] pro-

vides: [“jrating shall be done by or under

the supervision of the superintendent of

schools....[”] ... This section unambiguously

gives the superintendent final policymaking

authority with regard to employment rat-

ings.

413 F.3d at 368. Relying on this same standard, the

Third Circuit held a city liable for a series of retalia-

tory actions by the director of a city department.

A “final policymaker” is not always the chief

executive officer.... The test is “which official

has final, unreviewable discretion to make a

decision or take an action.” Andrews.... In the

present case, the [department head] had the

final say regarding the hiring and firing of

employees. If [the department head] could

have fired [the plaintiff], it simply does not

* 143 FAppx. at 456-57 (“if either of thle] employees [who

violated the plaintiff’s constitutional rights] had final decision-

making authority (i.e., acted as a “policymaker”) with regard to

[the plaintiff’s] suspension, [the Public Housing Authority] can

be held liable”).

make sense to argue that he did not have the

final policymaking authority to harass him

(a lesser retaliatory action).

Shehee v. City of Wilmington, 67 Fed.Appx. 692, 696

(3d Cir. 2003).

In the Sixth Circuit “the hallmark of municipal

liability is the finality of the decision being reviewed.”

Arendale v. City of Memphis, 519 F.3d 587, 601 (6th

Cir. 2008) (emphasis in original). In Arendale the

plaintiff alleged that his suspension from the city

police department was unconstitutional; the Sixth

Circuit concluded that the city was liable for that

asserted violation because the action of the Police

Chief in approving the suspension was unreviewable.

[The Police Chief] has final decision making

power within the Memphis Police Depart-

ment.... [Nleither the Memphis Charter nor

the Memphis City Code provide for further

review of Plaintiff’s suspension. [The Police

Chief} had “final policy making authority”

with respect to Plaintiff’s disciplinary

charge. Praprotnik, 485 U.S. at 128.... Ac-

cordingly ... the City may be held liable un-

der § 1983 for the final disciplinary decision

of [the Chief. ]

519 F.3d at 602. In Barnes v. City of Cincinnati, 401

F.3d 729 (6th Cir. 2005), the Sixth Circuit applied the

same standard in holding a city liable for the action

of a Police Chief in demoting the plaintiff. “[BJecause

it is clear that {the Chief] did in fact possess final

authority to demote [the plaintiff], the City can be

held liable for his actions.” 401 F.3d at 744.

In the Ninth Circuit as well local governments

are liable for constitutional violations by officials who

possess unreviewable decisionmaking authoryity. In

Lyile v. Carl, 382 F.3d 978 (9th Cir. 2004), the board

of trustees of a county school district had accorded

final authority over disciplinary actions to the school

superintendent and his subordinates. The court of

appeals concluded that the school district was liable

for retaliatory actions taken by an assistant superin-

tendent. “That [the assistant superintendent’s] disci-

plinary decisions were not subject to review by

anyone within the District indicates that he was a

final policymaker.” 382 F.3d at 985. In Hyland uv.

Wonder, 117 F.3d 405 (9th Cir. 1997), the plaintiff had

been dismissed by the Chief Juvenile Probation

Officer, an action which was not subject to review by

any other city agency or official. 117 F.3d at 414-15.

The finality of that employment decision meant that

the Juvenile Probation Officer “acted as a final poli-

cymaker with regard to [the plaintiff’s] position.” 117

F.3d at 416.

The Tenth Circuit has repeatedly imposed liabil-

ity on local governments because an employment

action had been taken by an official with final deci-

sionmaking authority. Starrett v. Wadley, 876 F.2d

808 (10th Cir. 1989), held a county liable for the

action of the County Assessor who had fired a subor-

dinate in retaliation for her complaints about sexual

harassment, reasoning that “aggrieved staff members

such as plaintiff had no meaningful avenues of review

of [the Assessor’s] employment decisions.” 876 F.2d at

819. In Ware v. Unified School District No. 492, 881

F.2d 906 (10th Cir. 1989), the court of appeals held

that a school district was liable for the unreviewable

act of a school superintendent in dismissing the

plaintiff.

A direct causal link [between the school dis-

trict and the constitutional violation] ... may

be established when the governing body has

delegated its decision-making authority to

the official whose illegal conduct caused the

harm.... Th[e] evidence is clearly sufficient to

permit the jury to conclude that the [school]

board had effectively delegated its power to

terminate [the plaintiff] to [the superinten-

dent]. Accord Starrett v. Wadley ... (county li-

able when it admitted vesting employee with

authority to fire his staff).

881 F.2d at 912-13. In Flanagan v. Munger, 890 F.2d

1557 (10th Cir. 1989), the Tenth Circuit applied the

final decisionmaking authority doctrine to repri-

mands issued by a Chief of Police.

‘Tlhe City admitted that “[alt all times per-

tinent hereto, the City ... has delegated to

[the Chief of Police] final authority to issue

reprimands to Colorado Springs police offi-

cers.... This admission effectively disposes of

the municipal liability issue because it all

but flatly states that [the Chief of Police] was

the final policymaker with respect to issuing

written reprimands in the department....

[City ordinances] do not create mandatory or

even formal review of department actions....

[Flor all intents and purposes the Chief’s

discipline decisions are final.... Thus, even if

we based our analysis on Colorado Springs’

municipal code, we would hold that [the

Chief of Police] has final authority to estab-

lish policy with respect to departmental rep-

rimands.

890 F.3d at 1568-69.

The Eleventh Circuit has long imposed liability

on cities for employment actions of officials with final

decisionmaking authority. In Martinez v. City of Opa-

Locka, Florida, 971 F.2d 708 (11th Cir. 1992), the

court of appeals held the city liable for the action of

its city manager in firing the plaintiff. In that case

the city charter, in language similar to the city char-

ter in the instant case,’ gave the city manager final

control of the hiring and firing of high level city

officials. Such final decisionmaking authority made

the city responsible for the actions of the city man-

ager.

* 971 F.2d at 714:

Neither the [city] commission nor any of its members

shall direct or request the appointment of any person

to, or his removal] from, office by the city manager ...

or in any inanner take part in the appointment or re-

moval of officers and emrlovele]s in the administra-

tive service...

[T]he City’s charter eliminates the authority

of any official or body to review the City

Manager’s decision to fire an unclassified

employee for retaliatory reasons.... [T]he

City’s charter ... vest[s] the City Manager

with absolute, discretionary authority to hire

and fire unclassified personnel in the admin-

istrative department. On this basis we con-

clude that [the charter] is a direct grant of

power to the City Manager to make final pol-

icy with respect to personnel matters for un-

classified employees....

971 F.2d at 714-15 (emphasis in original). The deci-

sion expressly rejected the argument of a dissenting

judge that it should distinguish — as does the Fifth

Circuit — between final decisionmaking authority and

final policymaking authority. See 971 F.2d at 715-16

(Johnson, J., concurring in part and dissenting in

part). The Eleventh Circuit has repeatedly imposed

liability on cities for the employment actions of final

decisionmakers.’

° E.g., Templeton v. Bessemer Water Service, 154 Fed.Appx.

759, 765 (llth Cir. 2005) (“We view the code sections as estab-

hshing the mayor as the final decisionmaker regarding a broad

range of hiring decisions within the city.... This is precisely the

kind of control ... that would subject the city to § 1983 liability.”);

Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1480 (11th Cir.

1991) (city liable “if state law assigns to [discriminatory official]

the final authority to make personnel decisions for the police

department”; liability turns on who is “the ultimate decision-

maker”); Lucas v. O'Loughlin, 831 F.2d 232, 235 (11th Cir. 1987)

(county liable for actions of official because “he had absolute

(Continued on following page)

The New York Court of Appeals holds that a law

which gives an executive official unreviewable au-

thority over a particular type of decision constitutes a

delegation of final policymaking authority. In Town of

Orangetown v. Magee, 88 N.Y.2d 41, 665 N.E.2d 1061

(1996), the Court of Appeals held Orangetown liable

for the decision of the town building inspector to

revoke a building permit. Under Praprotnik and

Pembaur, it reasoned, the controlling question was

“(wlhether an official has final authority to take

municipal action in a given case.” 88 N.Y.2d at 51, _

665 N.E.2d 1067.

[TJhe Building Inspector ... [was] vested by

law with the exclusive and unfettered au-

thority to decide the question of revocation....

The town Zoning Code, which necessar-

ily reflects Town policy, vests the Building

Inspector, alone, with the authority to revoke

building permits.... The Building Inspector

therefore implements Town policy....

88 N.Y.2d at 52-53, 665 N.E.2d at 1068.

B. The Minority View: More Than Final

Decisionmaking Authority Required

Four circuits, including in this instance the Fifth

Circuit, hold that an exercise of final decisionmaking

authority over the appointment and control of his [subordi-

nates].”)

power, while necessary for municipal liability, is not

by itself sufficient. These circuits apply divergent

standards regarding what additional circumstance

must be present.

In the Seventh Circuit a city is liable only for

the acts of officials who hold “legislative” power. The

decisions in that circuit

equate[] “policy” with the legislative power

of a jurisdiction. The holder of the ultimate

power to establish rules of general applica-

bility is the “policymaker.” Usually this

means the city council; at all events, holders

of purely executive power are never “policy-

makers.”

Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992).

Auriemma held that the city of Chicago was not

responsible for the politically motivated demotions of

the plaintiffs, even though the demotions had been

expressly approved by the mayor himself, because

“the mayor is an executive, not legislative, official in

Chicago’s system of government.” 957 F.2d at 400.

The Seventh Circuit has repeatedly insisted that

“(glenerally, a person holding only executive power

does not have policymaking authority for purposes of

§ 1983.” Rasche v. Village of Beecher, 336 F.3d 588,

601 (7th Cir. 2003) (village not liable for constitu-

tional violation by village president); see Gianessi v.

City of Pekin, 52 Fed.Appx. 265, 269 (7th Cir. 2002)

(city not liable for constitutional violation by mayor

because he was only responsible for “the administra-

tion — that is, the enforcement — of the laws, an execu-

tive function”) (emphasis in original); Grenetzke uv.

Kenosha Unified School District No. 1, 274 F.3d 464,

468 (7th Cir. 2001) (where “{a]n executive official ...

implements legislative policy ... his act is ... not the

act of the municipality itself for purposes of liability

under section 1983”; school district not liable for

constitutional violation by school superintendent).

The Fifth Circuit decision in the instant case

expressly adopts the Seventh Circuit’s distinction

between legislative and executive authority, holding

that only officials with legislative power are the

“policymakers” for whom a city is legally responsible.

(App. 9a-12a). Applying that narrow definition of

municipal liability, the court below concluded that

only the Dallas City Council, and not the city’s City

Manager, makes “policy” under Monell and its prog-

eny. (App. 1la-12a).

The Fourth Circuit also distinguishes “the au-

thority to make final policy [from] the authority to

make final implementing decisions.” Greensboro

Prof’l Fire Fighters Ass’n, Local 3157 v. City of

Greensboro, 64 F.3d 962, 965-66 (4th Cir. 1995) (em-

phasis in original). But, unlike the Fifth and Seventh

Circuits, the Fourth Circuit holds that executive

actions do at times constitute the type of conduct for

which a city can be held liable. In the Fourth Circuit

an executive official is a policymaker if he or she can

establish “rules, plans, [or] procedures.” Greensboro,

64 F.3d at 965; see Crowley v. Prince George’s County,

Maryland, 890 F.2d 683, 686 (4th Cir. 1989) (city

agency a policymaker because it was authorized to

“proscribe rules.”) In Greensboro that circuit held that

a city manager was a policymaker with regard to

employer-employee relations because he was author-

ized to establish such rules or plans to “administer”

the city’s personnel programs and to “implement the

provisions of [city ordinances]” and to “carry out the

intent of the [city] council.” 64 F.3d at 965 (emphasis

omitted). In Crowley the Fourth Circuit held that

a County Executive was a policymaker regarding

employee relations because the county charter au-

thorized him to “administer[ ]” the county’s personnel

system. See 890 F.2d at 686 (policymaking includes

“final authority to interpret and enforce the city’s

policy”). The authority of executive officials to “ad-

minister” municipal laws and programs is precisely

the type of power which the Fifth Circuit in the

instant case held is not sufficient to warrant munici-

pal liability. (App. 11a).

The Eighth Circuit distinguishes “final policy-

making authority from final decisionmaking author-

ity.” Davison v. City of Minneapolis, Minnesota, 490

F.3d 648, 660 (8th Cir. 2007). In the Eighth Circuit

there are two circumstances in which a final decision-

maker is deemed a municipal policymaker. First, as in

the Fourth Circuit, an executive official is a policy-

maker if he or she has the authority to promulgate

rules. Thus in Angarita v. St. Louis County, 981 F.2d

1537, 1547 (8th Cir. 1992), the Eighth Circuit held

that a Superintendent of Police was a policymaker

because he “was responsible for drafting and approv-

ing many of the department’s general orders.” Second,

an official is a policymaker if higher officials have

wholly relinquished control over his or her actions.

Thus in Williams v. Butler, 863 F.3d 1398 (8th Cir.

1988) (en banc), the city had “exemptied] municipal

court employees from the City’s general policy state-

ments.” 863 F.2d at 1402-03. Because the municipal

judge thus had “carte blanche authority” over court

employees, the judge “was the official policymaker for

the hiring and firing of his staff.” 863 F.3d at 1403.

C. The Conflict Is Deeply Entrenched and

Well Recognized

The conflict regarding this question is deeply

entrenched and widely recognized.

The 1984 Fifth Circuit decision in Bennett ex-

pressly “rejected” the less stringent standard in

several other circuits, citing among the disapproved

line of cases the Second Circuit decision in Rookard v.

Health and Hospitals Corp., 710 F.2d 41 (2d Cir.

1983). 728 F.2d at 767. Current Second Circuit deci-

sions continue to rely on Rookard in imposing liabil-

ity on a city for the actions of a final decisionmaker.”

* E.g., Gronowski v. Spencer, 424 F.3d 285, 296 (2d Cir.

2005) (quoting Rookard); Anthony v. City of New York, 339 F.3d

129, 139 (2d Cir. 2003) (quoting Rookard); Clue v. Johnson, 179

F.3d 57, 62 (2d Cir. 1999) (quoting Rookard).

Two years after Bennett, in Small v. Inhabitants

of City of Belfast, 796 F.2d 544 (lst Cir. 1986) the

First Circuit noted that the Fifth Circuit’s en banc

decision in Bennett had rejected the majority rule

that a city is liable for the final, unreviewable em-

ployment action of a city official. 796 F.2d at 552-53.

The First Circuit, however, expressly refused to follow

the decision in Bennett, holding that the majority rule

was “more persuasive.” 796 F.2d at 553.

In 1981, after the Fifth Circuit decision in

Schneider (which had adopted the majority rule) but

before the en banc decision in Bennett (which over-

turned Schneider), the current Eleventh Circuit was

established, encompassing several states that had

until then been part of the Fifth Circuit. The new

Eleventh Circuit expressly adopted as binding prece-

dent all decisions issued by the old Fifth Circuit prior

to October 1, 1981,’ a rule which encompassed the

decision in Schneider. In 1984 the new Fifth Circuit

in Bennett repudiated Schneider and adopted the

minority rule. In 1986, however, the Eleventh Circuit

expressly rejected the Fifth Circuit decision in Ben-

nett, deciding instead to continue to adhere to

Schneider.

The new Fifth Circuit, sitting en banc, has

rejected this line of authority primarily

represented by Schneider to the extent that

" Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)

(en banc).

such cases “would permit policy ... to be at-

tributed to the city itself by attribution to

any and all city officials endowed with final

. power or authority.” Bennett.... The ...

Eleventh Circuit ... case law ..., however, em-

phasizes finality in and of itself is indicative

of policymaking ability, and Schneider and

its progeny are unquestionably still viable

authority in this circuit.... “(Wlhere a gov-

ernment entity delegates the final authority

to make decisions then those decisions nec-

essarily represent official policy.”

Mullins v. City of Huntsville, Ala., 785 F.2d 1529,

1533 n.2 (11th Cir. 1986) (quoting Ancata v. Prison

Health Services, Inc., 769 F.2d 700, 705 n.9 (11th Cir.

1985)).

The Seventh Circuit commented in Auriemma

that “decisions of the other courts of appeals on this

subject are so varying that there is little point in

canvassing them.” 957 F.2d at 400. The Supreme

Court of Wisconsin observed that

[t]he federal cases have taken several ap-

proaches to this issue. Some cases equate

policymaking with legislative power, others

with executive power.

Burkes v. Klauser, 185 Wis.2d 308, 353, 517 N.W.2d

503, 522 (1994).

Commentators have repeatedly described this

inter-circuit conflict.

The ... more frequently litigated ... ques-

tion in determining if an official is a munici-

pal policymaker is whether the official

possesses policymaking authority. Two con-

trasting approaches can be taken in answer-

ing this question, and each has found

support in the lower courts.

One approach equates a municipality’s

policymakers with those who exercise its ul-

timate legislative power.... The opposing ap-

proach includes within the definition of

municipal policymakers those who are the

final authority or ultimate repository of city

power, that is, those who exercise or are ex-

ercising only executive power. “A person au-

thorized to commit the city to a course of

action necessarily sets its policy; on this

view, the action rs the policy.”

1 J. Cook and J. Sobieski, Jr., Civil Rights Actions,

par. 2.05[B][4] at 2-186 (2008) (footnotes omitted;

emphasis in original; quoting Auriemma, 957 F.2d at

399).

Lower courts have taken opposing positions

on whether municipal officials not desig-

nated by state or local law as policymakers

may nonetheless be transformed into policy-

makers by virtue of the fact that the munici-

pality has vested unreviewable authority to

act in those officials.

S. Cushman, Municipal Liability Under $ 1983:

Toward A New Definition of Municipal Policymaker,

34 B.C.L.Rev. 693, 696, 713-14 (1993) (footnotes

omitted).

[There are] two polar approaches to deter-

mining who is a municipal policy maker. One

approach equates policy-making authority

with the legislative power. Under this view,

... a holder of purely executive power, even if

his decisions are final, cannot be a policy

maker. The other approach equates policy-

making authority with the ability “to take fi-

nal action in the name of the jurisdiction —

that is, executive power.”

J. Ryland, Constitutional Law -— Auriemma v. Rice:

The Seventh Circuit’s Narrow Construction of $ 1983

Municipal Liability, 24 Mem.St.U.L.Rev. 111, 118-20

(1993) (footnotes omitted).

This question has now been addressed by eleven

circuits, and the issues which it raises have been fully

aired in the lower courts. The conflict is deeply en-

trenched, with several circuits having expressly

recognized and disapproved the differing standards in

other circuits. The disagreement regarding the rele-

vant standard is manifestly outcome determinative;

action by a municipality’s city manager is a paradigm

of the type of final decisionmaking authority which

would provide a basis for municipal liability in most

circuits other than the Fifth Circuit. This question is

of obvious and recurring importance, and is ripe for

review by this Court.

Ill. THERE IS AN INTER-CIRCUIT CONFLICT

REGARDING THE SIGNIFICANCE OF A

WRITTEN STANDARD FORBIDDING A

CONSTITUTIONAL VIOLATION

A. There Is A Three-Way Division Among

The Lower Courts Regarding The Sig-

nificance of Such A Standard

The divergent opinions in Praproinik triggered

another conflict among the lower courts. In the wake

of Praprotnik, the courts of appeals are divided

regarding whether a city is insulated from liability by

the existence of a written standard forbidding viola-

tions of federal constitutional! rights.

Praprotnik addressed this issue in a particularly

inconclusive manner. The plurality initially asserted

that

[wlhen an official’s discretionary decisions

are constrained by policies not of that offi-

cial’s making, those policies, rather than the

subordinate’s departures from them, are the

act of the municipality.

485 U.S. at 926 (plurality opinion). Justice Brennan

objected to the implications of this portion of the

plurality opinion.

While I have no quarrel with such a proposi-

tion in the abstract, I cannot accept the

plurality’s apparent view that a municipal

charter’s precatory admonition against dis-

crimination or any other employment prac-

tice not based on merit and fitness effectively

insulates the municipality from any liability

based on acts inconsistent with that policy....

[T]he relevant inquiry is whether the policy

in question is actually and effectively en-

forced through the city’s review mechanisms.

485 U.S. at 145 n.7. The plurality, in response, denied

that it would attach conclusive significance to “a

municipal charter’s precatory admonition.” 485 US.

at 130.

Refusals to carry out stated policies could

obviously help to show that a municipality’s

actual policies were different from the ones

that had been announced. If such a showing

were made, we would be confronted with a

different case than the one we decide today.

485 U.S. at 131.

In the wake of these opinions, the lower courts

have reached conflicting conclusions regarding cases

in which the author:tative action of a city’s officials

is inconsistent with some written standard. In the

Ninth and Eleventh Circuits the existence of such a

written standard is of limited or no relevance to

whether a city is liable for a constitutional violation.

On the other hand, in the Fifth and Seventh Circuits

such a written standard generally precludes the

imposition of liability on a city. The Eighth and Tenth

Circuits have taken an intermediate position.

In Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004), the

Ninth Circuit concluded that Praprotnik does not

permit a government body to insulate itself from

liability simply by adopting a standard prohibiting

constitutional violations. In that case a school district

had authorized the school superintendent to disci-

pline employees “in accordance with the applicable ...

laws.” 382 F.3d at 984. The school district argued that

if a superintendent is instructed in general

terms to follow the law, and if that superin-

tendent then violates the law, he or she

would be exceeding his delegated authority

and would therefore not be x “final policy-

maker.”

382 F.3d at 985. The court of appeals rejected that

proposed defense.

This argument proves too much, for the very

premise of school district liability for the acts

of a final policymaker is that the policy-

maker violated the constitutional rights of

the plaintiff. A general statement by a school

board or board of trustees that a superinten-

dent is not authorized to violate the law,

without more, cannot be enough to insulate

the school district from liability.

Id.

In Martinez v. City of Opa-Locka, Florida, 971

F.2d 708 (11th Cir. 1992), the Eleventh Circuit took a

similar approach. The plaintiff in Martinez had been

fired by the city manager in retaliation for constitu-

tionally protected activity. The city suggested that the

actions of the city manager could not constitute city

policy because the city charter required that person-

nel decisions “be made according to merit and

fitness.” 971 F.2d at 714. The Eleventh Circuit re-

jected that suggestion, emphasizing that the actions

of the city manager — whether or not they complied

with that provision of the city charter — could not be

reviewed by any other city official. 971 F.2d at 714-15.

The court of appeals concluded that the plurality

opinion in Praprotnik barred reliance on a city char-

ter provision which no higher city official could re-

quire the city manager to obey.

The Court ... warned in Praprotnik that a

municipal charter could not insulate the

municipality from hability for constitutional

deprivations merely by including a “preca-

tory admonition against discrimination or

any other employment practice not based on

merit and fitness....” [485 U.S.] at 130.

971 F.2d at 714.*

In Randle v. City of Aurora, 69 F.3d 441 (10th

Cir. 1995), the Tenth Circuit emphasized that “any ...

constraints must be meaningful — as opposed to

merely hypothetical — in order to strip an official of

‘final policymaking’ authority.” 69 F.3d at 450 (em-

phasis in original). A “[city| charter provision that all

personnel decisions were to be made solely based

upon ‘merit and fitness’ did not immunize City from

* The quotation is from the plurality opinion in Praprotnik,

which in turn is quoting Justice Brennan’s concurring opinion.

See 485 U.S. at 935 n.7 (Brennan, J., concurring).

liability based upon City Manager’s personnel deci-

sion.” Id.

In Williams-El v. Johnson, 872 F.2d 224 (8th Cir.

1989), the Eighth Circuit held that “[t]he written,

official policy of a city is to be given great weight in

determining what the city’s policies are.” 872 F.2d at

230. Such a written policy however, is not conclusive

in that circuit. In Angarita v. St. Louis County, 981

F.2d 1537, 1547 (8th Cir. 1992), the Eighth Circuit

upheld the imposition of liability against a county

because of the actions of the county Superintendent of

Police, stressing that “[t]here is ample evidence that

the County departed from its complaint review proce-

dure ... through blatant misconduct and coercion.”

The court of appeals regarded the violation of the

county’s own standards as an aggravating factor, not

some sort of defense.

In the Seventh Circuit, on the other hand, the

existence of a written standard precluding a particu-

lar type of constitutional violation does insulate a city

from hability for such a violation. In Auriemma uv.

Rice, 957 F.2d 397 (7th Cir. 1992), several Chicago

city employees had been demoted shortly after the

election of a new mayor; they asserted that the demo-

tions had been ordered by the Chief of Police, with

the concurrence of the mayor, because of the political

views of the plaintiffs. The court of appeals acknow!-

edged that such patronage practices were widespread

and longstanding in the city of Chicago. 957 F.2d at

399. It held, nonetheless, that the city was not liable

for those actions.

Ordinances applicable to the police depart-

ment unequivocally ban ... political discrimi-

nation.... If ... [the Chief] discriminated on

account of ... politics, he violated rather than

implemented the policy of Chicago.

957 F.2d at 399-401. The Seventh Circuit has held

that a city is immune from liability for injuries

caused by an unconstitutional conduct of city officials

— no matter their rank or position — if the action in

question was inconsistent with a state law,’ a person-

nel manual,” or a consent decree.”

In the instant case the Fifth Circuit, as it had

earlier,” applied the rule in Auriemma. The mere

existence of a provision of the city charter forbidding

the dismissal of Bolton was held to insulate the city

from liability. (App. 13a). In so holding, the court of

appeals did not suggest that there was any official or

agency in the city of Dallas which had the power to

prevent or correct such a violation of the city charter

by the City Manager. To the contrary, as the Fifth

Circuit repeatedly acknowledged, the City Manager’s

* Radic v. Chicago Transit Authority, 73 F.3d 159, 161 (7th

Cir. 1996).

'° Lawshee v. Simpson, 16 F.3d 1475, 1484 (7th Cir. 1994).

" Auriemma, 957 F.2d at 399 (citing the consent decree in

Shakman v. Democratic Organization of Cook County, 481

F.Supp. 1315, 1356-58 (N.D_Ill. 1979)).

’ Barrow v. Greenville Ind. Sch. Dist., 480 F.3d 377, 382

(5th Cir. 2007).

actions — whether or not they violated the city charter

or the constitution — were final.

B. The Fifth and Seventh Circuit Stan-

dard Is Inconsistent With The Purpose

and History of Section 1983

The courts below sustained the defendant’s

contention that the City Manager’s decision to fire

petitioner Bolton, because it violated the city charter,

“was not the decision of the City.” (App. 23a). That

conclusion starkly illustrates how far the caselaw in

the Fifth and Seventh Circuits has departed from the

intended purpose of section 1983 and from the deci-

sions of this Court.

Nearly half a century ago this Court rejected an

all too similar argument, that constitutional viola-

tions by city officials are not actions “under color of

law” within the meaning of section 1983 if state law

forbids the constitutional violation in question. Mon-

roe v. Pape, 365 U.S. 167, 171 (1961). In disapproving

such a limitation on section 1983, this Court empha-

sized that

[it] is abundantly clear that one reason [sec-

tion 1983] was passed was to afford a federal

right in federal courts because, by reason of

prejudice, passion, neglect, intolerance or

otherwise, state laws might not be enforced

and the claims of citizens to enjoyment of

rights ... guaranteed by the Fourteenth

Amendment might be denied by the state

agencies.

365 U.S. at 180. In later decisions holding that sec-

tion 1983 plaintiffs are not required to exhaust state

law remedies, this Court twice insisted that relief

under section 1983 cannot be denied because the

conduct complained of not only violated the federal

constitution but was prohibited by state law as well.

It is immaterial whether respondents’ con-

duct is legal or illegal as a matter of state

law.... Such claims are entitled to be adjudi-

cated in the federal courts.

McNeese v. Board of Education, 373 U.S. 668, 674

(1963).

A major factor motivating [the adoption of

section 1983] was the belief of the 1871 Con-

gress that the state authorities had been un-

able or unwilling to protect the constitutional

rights of individuals....

Patsy v. Board of Regents of the State of Florida, 457

U.S. 496, 506 (1982). Nothing in the reasoning of or

the legislative history recounted in Monell suggests

that the existence of such a state law (or city charter)

prohibition, which this Court has repeatedly held

irrelevant to the meaning of section 1983, should

nonetheless be dispositive of and fatal to a section

1983 claim against a city.

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Fifth Circuit.

Respectfully submitted,

KATHERINE L. BUTLER

BUTLER & HARRIS

1007 Heights Blvd.

Houston, TX 77008

(713) 526-5677

ERIC SCHNAPPER*

School of Law

University of Washington

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

*Counsel of Record

Counsel for Petitioner

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10999

TERRELL BOLTON

Plaintiff-Appellant

CITY OF DALLAS TEXAS; CITY MANAGER

TEODORO BENAVIDES, In His Official Capacity

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

(04-CV-501)

(Filed Aug. 7, 2008)

Before JOLLY, CLEMENT and OWEN, Circuit

Judges.

PER CURIAM:

After a remand from this court, Terrell Bolton,

former police chief of the City of Dallas, Texas, again

appeals from the district court’s ruling and judgment

that the City of Dallas is not liable, under 42 U.S.C.

§ 1983, for his termination by Ted Benavides, the

Dallas city manager. Because we agree that, even

though Benavides was the final decisionmaker, his

actions in this respect were not the policy of the City

and, as a result, the City is not liable for his termina-

tion of Bolton, we AFFIRM. We also DENY the re-

spective motions of the parties as moot.

In August 2003, Terrell Bolton was terminated as

the Chief of Police of Dallas by Ted Benavides. Bolton

filed a 42 U.S.C. § 1983 suit against both Benavides

and the City of Dallas, alleging that his due process

rights under the Fourteenth Amendment to the

United States Constitution had been violated by the

termination. Bolton admitted that Benavides had the

authority to remove Bolton from his position as Chief

of Police but argued that Benavides did not have the

authority to terminate him from the police depart-

ment. Bolton relied on Chapter XII, § 5, of the Dallas

City Charter (“the Charter”):

If the chief of the police department ... was

selected to that position from the ranks of

the police department and is removed from

the position on account of unfitness for the

discharge of the duties of the position, and

not for any cause justifying dismissal from

the service, the chief... shall be restored to

the rank and grade held prior to appoint-

ment to the position, or reduced to a lower

appointive rank.

Bolton initially lost his suit in district court on sum-

mary judgment; the district court found that Bolton,

as Chief of Police, had no property interest in further

employment by the City and therefore could not

prevail on a due process claim.

A panel of this court disagreed and held that the

Charter did give Bolton a property interest “in con-

tinued employment at the rank and grade held before

his appointment to the executive position.” Bolton v.

City of Dallas, 472 F.3d 261, 264 (5th Cir. 2006). The

panel also concluded, however, that Benavides was

entitled to qualified immunity in his individual

capacity because the precedent governing the case,

Muncy v. City of Dallas, 335 F.3d 394 (5th Cir. 2003),

did not clearly proscribe Benavides’s termination of

Bolton. Bolton, 472 F.3d at 266. The panel therefore

dismissed Bolton’s claims against Benavides in his

individual capacity and remanded the case for deter-

mination of further liability, if any. Jd.

Il.

Back in the district court, Benavides and the City

once again moved for summary judgment. The dis-

trict court granted the motion. The district court held

that the only remaining claim against Benavides was

in his official capacity, and therefore Bolton’s suit

contested only the liability of the City. It further held

that the City of Dallas could not be held responsible

for Benavides’s actions because Benavides had frus-

trated the policy of the City by terminating Bolton in

violation of Chapter XII, § 5, of the Charter. Bolton

filed a motion for reconsideration that included

several arguments not initially raised before the

district court. The judge denied this motion. Bolton

appealed both the grant of summary judgment in

favor of Dallas and the denial of his motion for recon-

sideration.

IIf.

On appeal, Bolton argues that the discretion that

Benavides had to terminate personnel makes him a

policymaker for the City with respect to the employ-

ment action here. Accordingly, the City is liable for

Benavides’s termination of Bolton. Dallas responds

that, although Benavides did have discretion to make

employment decisions without the direct oversight of

the city council, the pelicies of the City are reflected

in the Charter; acts contrary to the Charter cannot be

imputed to the City.’

' As we noted above, Bolton also appealed from the district

court’s denial of his motion for reconsideration. The district

court refused to consider new evidence and arguments that

Bolton presented in that motion and accordingly denied it.

Bolton has included some of that evidence in his brief, prompt-

ing Dallas to file a motion to strike those portions of Bolton’s

brief. Bolton does not, however, make any attempt in his brief to

(Continued on following page)

IV.

We review the district court’s grant of summary

judgment de novo. Cousin v. Small, 325 F.3d 627, 637

(5th Cir. 2003). Summary judgment is proper “if the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact.” Fep. R. Civ. P. 56(c).

“On a motion for summary judgment, the court must

view the facts in the light most favorable to the non-

moving party and draw all reasonable inferences in

its favor.” Coury v. Moss, 529 F.3d 579, 584 (5th Cir.

2008).

argue that the district court made an error in the denial of the

motion for reconsideration. Instead, Bolton addresses the motion

for reconsideration only in his response to the City’s motion to

strike. “We deem abandoned those issues not raised in an

appellant’s initial brief and we will not consider those issues not

raised in the trial court.” United States v. Ragsdale, 426 F.3d

765, 785 n.9 (5th Cir. 2005). Moreover, the district court plainly

acted within its discretion in refusing to consider the new

evidence — Bolton’s argument that the district court’s summary

judgment was sua sponte and that he therefore had no notice

that the evidence was relevant is contradicted by the record. See

Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). In

any case, we DENY the City’s motion to strike — and Rolton’s

motion for leave to file a sur-reply — as moot.

Municipal liability for civil rights violations

under § 1983 is based on causation rather than

respondeat superior. See Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 692 (1978). The fact that a tortfeasor is

an employee or an agent of a municipality is therefore

not sufficient for city liability to attach; the munici-

pality must cause the constitutional tort, which

occurs “when execution of a government’s policy or

custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent

official policy, inflicts the injury.” Jd. at 694.

Bolton does not argue that the City has a written

policy or unwritten custom that has caused him

constitutional harm. Instead, he argues that the

single decision and act of Benavides in terminating

him constitutes the policy of the City. It is well-

established that a single unconstitutional action by a

municipal actor may give rise to municipal liability if

that actor is a final policymaker. Woodard v. Andrus,

419 F.3d 348, 352 (5th Cir. 2005). Accordingly, this

“court’s task is to ‘identify those officials or govern-

mental bodies who speak with final policymaking

authority for the local governmental actor concerning

the action alleged to have caused the particular

constitutional or statutory violation at issue.’”

McMillian v. Monroe County, 520 U.S. 781, 784-85

(1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989)). This inquiry is specific to the

particular action at issue, see id. at 785, and depends

on an analysis of relevant state and local law, see Jett,

491 U.S. at 737.”

Our auelysis must also take into account the

difference between final decisionmaking a» thority

and final policymaking authority, a distinction that

this circuit recognized as fundamental in Jett v.

Dallas Independent School District, 7 F.3d 1241,

1247 (5th Cir. 1993). The distinction between final

decisionmaker and final] policymaker has its origin in

two Supreme Court plurality opinions, Pembaur uv.

City of Cincinnati, 475 U.S. 469 (1986), and City of

St. Louis v. Praprotnik, 485 U.S. 112 (1988). Both

opinions concluded that discretion to exercise a

particular function does not necessarily entail final

policymaking authority over that function.’ Pembaur,

* “<(C]ustom or usage having the force of law” may also be

consulted, Jett, 491 U.S. at 737 (internal quotation marks

omitted), but Bolton does not base his arguments on these

sources.

> In a footnote, the Pembaur Court illustrated this distinc-

tion:

[Flor example, the County Sheriff may have discretion

to hire and fire employees without also being the

county official responsible for establishing county em-

ployment policy. If this were the case, the Sheriff’s de-

cisions respecting employment would not give rise to

municipal liability, although similar decisions with re-

spect to law enforcement practices, over which the

Sheriff is the official policymaker, would give rise to

municipal liability. Instead, if county employment pol-

icy was set by the Board of County Commissioners,

only that body’s decisions would provide a basis for

county liability. This would be true even if the Board

(Continued on following page)

475 U.S. at 483-84, 106 S.Ct. 1292; Praprotnik, 485

U.S. at 130. In Jett, we understood the decisionmak-

ing addressed in Pembaur and Praprotnik to include

decisions that were “final.” 7 F.3d at 1247. We noted

that neither of the Supreme Court cases made a

“suggestion of any qualification such as ‘initial’ dis-

cretion or the decisionmaker’s action being subject to

appeal or the like.” Jd. at 1247-48. And, moreover,

Praprotnik states that “[wJhen an official’s discre-

tionary decisions are constrained by policies not of

that official’s making, those policies, rather than the

subordinate’s departures from them, are the act of the

municipality.” Praprotnik, 485 U.S. at 127. We held

that this statement “ applies even to individual

decisions which are not reviewable.” Jett, 7 F.3d at

1248. Thus, Jett “eschews the importance of adminis-

trative reviewability in distinguishing final decision-

making authority from final policymaking authority.”

Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525,

530 (5th Cir. 2006).

left the Sheriff discretion to hire and fire employees

and the Sheriff exercised that discretion in an uncon-

stitutional manner; the decision to act unlawfully

would not be a decision of the Board. However, if the

Board delegated its power to establish final employ-

ment policy to the Sheriff, the Sheriff’s decisions

would represent county policy and could give rise to

municipal liability.

475 U.S. at 483 n.12. And, as we noted in Jett, 7 F.3d at 1247,

this example was revisited in Praprotnik as a basis for its

distinction between a final policymaker and a final decision-

maker. 485 U.S. at 129-30.

In Jett, we also recognized support for this posi-

tion in a Seventh Circuit case, Auriemma v. Rice, 957

F.2d 397 (7th Cir. 1992), and in this circuit’s own

precedents. See Jett, 7 F.3d at 1248. In Auriemma,

the Seventh Circuit assumed that the Chicago Super-

intendent of Police had final, executive authority to

demote police officers. Auriemma, 957 F.2d at 399.

But it nevertheless held that such authority could not

support municipal! liability:

If it were enough to point to the agent whose

act was the final one in a particular case, we

would have vicarious liability. Action in the

course of one’s duty is the basis of vicarious

liability. That a particular agent is the apex

of a bureaucracy makes the decision “final”

but does not forge a link between “finality”

and “policy”.

Id. at 400. And in this circuit, “[w]e took essentially

the same approach ... where ‘we rejected the line of

authority ... which would permit policy or custom to

be attributed to the city itself by attribution to any

and all officers endowed with final or supervisory

power or authority.’” Jett, 7 F.3d at 1248 (quoting

Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.

1984) (en banc) (per curiam)) (second alteration in

original). The finality of an official’s action does not

therefore automatically lend it the character of a

10a

policy.’ See id. at 1246; Barrow v. Greenville Indep.

Sch. Dist., 480 F.3d 377, 382 n.17 (5th Cir. 2007).

* Gelin does note that “we have found the existence of

effective administrative review to be relevant in certain con-

texts.” 456 F.3d at 530. The cases cited by Gelin generally

confirm that review procedures can be relevant to showing that

an official is not a final policymaker. See, e.g., Beattie v. Madison

County Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001) (holding that

a superintendent was not a final policymaker because her

decision was subject to review by the school board); Worsham uv.

City of Pasadena, 881 F.2d 1336, 1341 (5th Cir. 1989) (“The

existence of effective review procedures prevents the employees

from wielding final responsibility in the instant case.”). Further,

we have since explicitly understood Beattie to otherwise follow

Jett. See Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377,

382 n.17 (“This court in [Beattie] characterized Jett as holding

that ‘a superintendent’s transfer of a teacher to another position

might be a final policy decision if that action was unreviewable,

even if the superintendent did not have complete control over

the hiring and firing of district personnel.’ ‘Might be’ does not

mean ‘is,’ and a person is not a policymaker when he makes a

decision simply because that decision is unreviewable.”(quoting

Beattie, 254 F.3d at 603)).

Gelin also cites, and Bolton relies on, Brady v. Fort Bend

County, 145 F.3d 691 (5th Cir. 1998), one of a number of cases in

which we addressed the liability of a Texas county for the

actions of its sheriff. But Brady, and another case in this line

cited by Bolton, Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996),

depend on a premise not present here: the special place accorded

by state statute to Texas sheriffs as the ultimate repository of

legal authority in a given county “not by virtue of delegation by

the county’s governing body but, rather, by virtue of the office to

which the sheriff has been elected.” Turner v. Upton County, 915

F.2d 133, 136 (5th Cir. 1990); see also Brady, 145 F.3d at 699-

701; Bennett, 74 F.3d at 586. Thus, Texas sheriffs are policymak-

ers as a direct result of state statute; their constitutional

violations result in county liability even if contrary to other state

(Continued on following page)

lla

Here, where Dallas has a city council and a city

manager, the state and local law show that the city

manager is an executive and administrative official

with final decisionmaking authority in certain em-

ployment decisions; it does not show that the Charter

or the city council delegated policymaking power to

the city manager. Nor can Bolton otherwise build a

case that Benavides had such power in this instance.

Bolton first cites state law:

(a) The city manager shall administer the

municipal business and the governing body

of the municipality shall ensure that the

administration is efficient.

(b) The governing body by ordinance may

delegate to the city manager any additional

powers or duties the governing body consid-

ers proper for the efficient administration of

municipal affairs.

The bond must be conditioned that the man-

ager will faithfully perform the duties of

manager and must be in an amount pre-

scribed by ordinance.

TEXAS LOCAL Gov’T CODE ANN. § 25.029. The repeated

references to the city manager’s responsibility for

“administration” make clear that the position is

executive rather than legislative; that is, state law

law or policy. Bennett, 74 F.3d at 586. No such statute is present

here.

12a

alone does not give to city managers “the responsibil-

ity for making law or setting policy in any given area

of a local government’s business.” Praprotnik, 485

U.S. at 125. State law instead reserves that role for

the “governing body.”

Nor does the local law that Bolton cites delegate

to Dallas’s city manager policymaking authority with

respect to the employment decision here. The Charter

does give a broad degree of discretion to the city

manager in the city manager’s removal and appoint-

ment of employees, and it further prohibits the city

council from “dictat[ing]” the city manager’s decisions

in that regard. Bolton depends on this discretion —

and its coordinate lack of review — to demonstrate

that Benavides is a final policymaker. But, as we

discussed above, neither complete discretionary

authority nor the unreviewability of such authority

automatically results in municipal liability.” There

must be more. And Bolton points to no other relevant

source of law showing that the City vested Bolton

with policymaking power.

* Bolton cites Neubauer v. City of McAllen, 766 F.2d 1567,

1573-74 (5th Cir. 1985), overruled on other grounds by Walther v.

Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992), for the proposi-

tion that a city manager with final discretion to make employ-

ment decisions is necessarily a final policymaker. But we have

not understood Neubauer to announce such a broad rule or to be

inconsistent with Pembaur. See Jett v. Dallas Indep. Sch. Dist.,

798 F.2d 748, 759 (5th Cir. 1986), aff’d in part and remanded in

part on other grounds,491 U.S. 701 (1989). And the Charter here

imposes limitations on the city manager not present in

Neubauer. See 766 F.2d at 1573-74.

l3a

Further, Chapter XII, § 5, of the Charter — the

relevant local law quoted earlier — prohibits the

specific action taken by Benavides. Thus, absent

some contrary custom not shown here, Benavides’s

action clearly does not represent final policy with

respect to the removal of city officials like Bolton. It is

the Charter that announces the City’s policy in this

regard. See Barrow, 480 F.3d at 382 (“(A]n official

whose discretionary decisions on a particular matter

are final and unreviewable, meaning they can’t be

overturned, is constrained if another entity has

ultimate power to guide that discretion, at least

prescriptively, whether or not that power is exer-

cised.” (footnotes omitted)); Auriemma, 957 F.2d at

400 (“Liability for unauthorized acts is personal; to

hold the municipality liable, Monell tells us, the

agent’s action must implement rather than frustrate

the government’s policy.”); Praprotnik, 485 U.S. at

127. There is no argument that Benavides was gener-

ally free to disregard the Charter,’ or that the City

had a custom of permitting such disregard. And

Bolton has not shown that Benavides was vested with

° Bolton makes an ill-defined argument that the City did

assert in earlier litigation that Benavides was free to disregard

Chapter XII, § 5, of the Charter and that its statements in this

respect should now be held against the City lest the integrity of

the courts be compromised. Bolton calls these statements

‘judicial admissions,” although his argument also has the

characteristics of a request for estoppel. In any case, it is evident

that the City’s position now is a direct consequence of our earlier

ruling in Bolton’s favor. We find no reason to prevent the City

from advancing such an argument in this case.

l4a

policymaking authority such that municipal liability

should attach despite the existence of a contrary city

policy. See Bennett, 74 F.3d at 586. Benavides was

therefore not the final policymaker with respect to his

decision to terminate Bolton and municipal lability

cannot attach to that decision.

Because state and local law demonstrate that Ted

Benavides was not a final policymaker with respect to

his decision to terminate the employment of Terrell

Bolton, the City of Dallas cannot be held liable for

that termination. Accordingly, the district court’s

grant of summary judgment in favor of Dallas is

AFFIRMED. The motions before us are DENIED as

moot.

15a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRELL BOLTON, §

Plaintiff, §

VS. ® Civil Action No.

CITY OF DALLAS, § 3:04-CV-0501-D

TEXAS, et al., 8

Defendants. N

MEMORANDUM OPINION

AND ORDER

(Filed Aug. 17, 2007)

In this suit by a terminated Chief of Police under

42 U.S.C. §1983 alleging that his Fourteenth

Amendment rights to due process and equal protec-

tion were violated when he was discharged rather

than reassigned to a lower rank, the dispositive

question presented by defendants’ motion for sum-

mary judgment is whether the conduct of the City

Manager who discharged the plaintiff is attributable

to the defendant City. Concluding that the City

cannot be held liable under § 1983 for the City Man-

ager’s unauthorized departure from City policy, the

court grants defendants’ motion and dismisses this

case with prejudice.

This is an action by plaintiff Terrell Bolton

(“Bolton”) against defendant City of Dallas, Texas

(“City”) and its former City Manager, defendant

Teodoro Benavides (“Benavides”). Bolton served as

Chief of Police of the Dallas Police Department

(“DPD”) from October 1, 1999, until Benavides termi-

nated him on August 26, 2003.' Bolton alleges that

the City and Benavides are liable under §1983 for

violating his Fourteenth Amendment due process and

equal protection rights. Specifically, he complains

that defendants violated these rights by terminating

his employment rather than reassigning him to the

last civil service rank he held prior to being appointed

to the executive ranks of the DPD.

Appointment to the executive rank position of

Chief of Police is made at the discretion of the City

Manager, who, during Bolton’s tenure as Chief of

Police, was defendant Benavides. In addition to Chief

of Police, the appointed executive ranks of the DPD

include the Deputy Chief of Police, Assistant Chief of

Police, and any other positions as may be created or

designated by the Chief of Police. The civil service

ranks of the DPD are (in descending order) Captain,

' The court recounts the evidence in a light favorable to

Bolton as the summary judgment: nonmovant and draws all

reasonable inferences in his favor. E.g., U.S. Bank Nat'l Ass’n v.

Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006)

(Fitzwater, J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000)).

17a

Lieutenant, Sergeant, Senior Corporal, and Police

Officer. Unlike the executive ranks, promotions

within the civil service ranks require competitive

service examinations.

Before his appointment as Chief of Police, Bolton

had held the executive rank positions of DPD Assis-

tant Chief for eight years, Deputy Chief for three

years, Manager of Building Security for approxi-

mately one year (a civilian position), and, before that,

the civil service rank of Sergeant. At the time he was

appointed Chief of Police, Bolton had approximately

twenty years of service with the DPD.

In August 2003 Benavides determined that

Bolton was unfit for the position of Chief of Police and

advised him that he had been terminated. Bolton was

not reassigned to a lower rank within the DPD. In a

letter, Benavides listed a “series of issues” that

caused him to determine that “new leadership for the

[DPD was] needed.” 2d Am. Compl. 118 (brackets in

original). Benavides conceded that he did not termi-

nate Bolton for cause.

Following his termination, Bolton filed this

lawsuit against the City and Benavides, alleging that

under Chapter XII, § 5 of the Dallas City Charter, he

had a protected property interest in continued em-

ployment with the DPD and that, by arbitrarily and

capriciously denying him reassignment within the

DPD, Benavides and the City had violated his Four-

teenth Amendment rights to due process and equal

18a

protection. Chapter XII, § 5 of the Dallas City Char-

ter provides,

If the chief of the police department ... was

selected to that position from the ranks of

the police department and is removed from

the position on account of unfitness for the

discharge of the duties of the position, and

not for any cause justifying dismissal from

the service, the chief ... shall be restored to

the rank and grade held prior to appoint-

ment to the position, or reduced to a lower

appointive rank.

Dallas, Tex., City Charter Ch. XII, §5 (repealed

2005).

This lawsuit was initially assigned to another

member of this court. Defendants moved for summary

judgment, and the court granted the motion, holding

that Bolton lacked a constitutionally protected prop-

erty interest in further employment with the DPD.

Bolton v. City of Dallas, 2005 U.S. Dist. LEXIS 20543,

at *8 (N.D. Tex. Sept. 20, 2005) (Kinkeade, J.), rev'd

in part, dism’d in part, 472 F.3d 261 (5th Cir. 2006).

The Fifth Circuit reversed in part, concluding that

Chapter XII, § 5 of the Dallas City Charter did create

a constitutionally protected property interest in

Bolton’s continued employment at the rank and grade

held before his appointment to the executive position,

and it remanded the case. Bolton v. City of Dallas,

Tex., 472 F.3d 261, 265 (5th Cir. 2006) (“Bolton I”).

The Fifth Circuit dismissed Bolton’s action against

Benavides in his individual capacity, concluding that

19a

Benavides was entitled to qualified immunity because

reasonable public officials could have differed on

whether discharging Bolton would violate his consti-

tutional! rights. Id. at 266. Following remand and the

decision of the presiding judge to recuse, the case was

reassigned. Bolton filed a second amended complaint,

and defendants obtained leave to file a second motion

for summary judgment.

Defendants contend that the decision to termi-

nate Bolton was not arbitrary or capricious; Bolton

did not have a property interest in continued em-

ployment with the DPD because he was not appointed

to the executive ranks from the sworn ranks;

Benavides is entitled to summary judgment because

the Fifth Circuit concluded in Bolton I that he is

entitled to qualified immunity; Bolton’s claims for

punitive damages should be dismissed because puni-

tive damages are not recoverable under § 1983; and

the City is not liable under § 1983 for Benavides’s

decision to terminate Bolton’s employment. Bolton

opposes defendants’ motion.

The court begins with defendants’ contention that

Benavides is entitled to summary judgment insofar

as he is sued in his official capacity. Defendants

maintain that the official-capacity claim must be

dismissed on the ground that it is duplicative of, and

merges with, Bolton’s action against the City. The

court agrees. A suit against a government official in

20a

his official capacity is “only another way of pleading

an action against an entity of which [the official] is an

agent.” Monell v. Dep? of Soc. Servs. of N.Y., 436 U.S.

658, 690 n.55 (1978). If the government entity re-

ceives notice and an opportunity to respond, an

“official capacity suit” is treated as a suit against the

entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985).

A suit against a municipal official in his official

capacity is not a suit against the official personally,

because the real party in interest is the entity. Id. at

166. Thus there is no longer any need to bring offi-

cial-capacity actions. Accordingly, the court dismisses

Bolton’s § 1983 claim against Benavides in his official

capacity.

III

To recover against the City on his § 1983 claim,

Bolton must establish that the City is liable for

Benavides’s conduct. Defendants maintain that

Bolton cannot meet this burden. Again, the court

agrees.

Although municipalities are “persons” under

§ 1983, see Monell, 436 U.S. at 690, they cannot be

held liable simply on a theory of respondeat superior,

id. at 691. Rather, liability obtains only “when execu-

tion of.a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy,

2la

inflicts the injury[.]” Id. at 694. “Normally, a plaintiff

must identify a policy or custom that gave rise to the

plaintiff’s iniury before he may prevail.” Geiin uv.

Hous. Auth. of New Orleans, 456 F.3d 525, 527 (5th

— Cir. 2006) (citing Canton v. Harris, 489 U.S. 378, 389

(1989)). “It is well-established, however, that a single

decision by an official can be grounds for section 1983

liability where the decision was rendered by an

individual with ‘final policy making authority.’” Id.

(citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,

737 (1989); Brady v. Fort Bend County, 145 F.3d 691,

698 (5th Cir. 1998)). “Where liability is based upon a

single decision by an official, [a] court’s task is to

identify those officials or governmental bodies who

speak with final policymaking authority for the local

governmental actor concerning the action alleged to

have caused the particular constitutional or statutory

violation at issue.’” Jd. (quoting McMillian v. Monroe

County, Ala., 520 U.S. 781, 784-85 (1997) (some

internal quotation marks omitted)). “[T]he identifica-

tion of those officials whose decisions represent the

official policy of the local governmental unit” is a

question of state law “to be resolved by the trial judge

before the case is submitted to the jury.” Jett, 491 U.S.

at 737.

Defendants argue that the City is not liable for

Benavides’s decision to terminate Bolton as Chief of

Police. They maintain that Bolton cannot point to any

facts regarding any official City policy or custom that

22a

deprived him of his constitutional rights, arguing

that Benavides’s decision not te reassign him to

another position was an isolated incident that is

insufficient to constitute final official policy. Defen-

dants next argue that Bolton cannot establish liabil-

ity against the City because he cai.not show that his

termination and the failure to reassign him to an-

other position were the decisions of a policymaker.

They posit that to determine whether the City is

liable, the court must decide whether the injury was

caused by the act of an employee taken pursuant to

his role as a policymaker or whether the conduct was

undertaken as a decisionmaker in execution of a

policy for which the City is the policymaker.

Defendants argue that this case falls within the

latter category. They point to various provisions of the

Dallas City Charter that they allege establish that

the City Council is the policymaker for all City per-

sonnel policies. Defendants maintain that although

the City Manager is vested with discretion to appoint

and remove directors of departments, including

within the DPD, he is not the policymaker with

respect to the City’s employment policies. Rather, his

responsibility is to implement the policies set by the

City Council. Defendants contend that the Civil

Service Board is the only entity authorized to make

rules and regulations, which are then subject to City

Council approval; there is no provision of the Charter

that delegates policymaking authority to the City

Manager; although the City Manager is vested with

authority to hire and replace executive rank employees,

23a

that is as far as his authority extends; and if

Benavides exercised his authority in an unconstitu-

tional manner, the decision to act unlawfully was not

the decision of the City.

Bolton responds that proof that an individual

lacked authority to make other decisions is not rele-

vant to the question whether he was the policymaker

with respect to the precise act at issue. He maintains

that defendants’ argument that the City Council was

the “real” policymaker fails because the City Charter

specifically forbids the Council from making a deci-

sion to remove the Chief of Police.

In reply, defendants point out that Chapter XII,

§ 5 of the Dallas City Charter sets forth the policy of

the City with respect to removing and retaining

executive rank officers, and that the City Manager is

responsible for administering that policy, which

Benavides did when he terminated Bolton. Defen-

dants argue that the City Charter vests all authority

in the City Council and establishes that the scope of

the City Manager’s authority is limited to the “proper

administration of all the city affairs placed in his

hands.” Ds. Reply Br. 15 (bold font omitted) (quoting

Dallas, Tex. City Charter Ch. VI, § 2(1)). They there-

fore maintain that Benavides was a decisionmaker,

not a policymaker, under authority conferred upon

him by the City Charter, which made him responsible

to the City Council for his decisions. Defendants

therefore contend that if his decision to terminate

Bolton was wrong, it was not the decision of the City,

and the City cannot be held liable under § 1983.

24a

The court will assume arguendo that Bolton’s

Fourteenth Amendment rights were violated when

Benavides decided to terminate, rather than reassign,

him, as required by Chapter XII, §5 of the City

Charter when a Chief of Police who is selected from

the ranks of the DPD is not terminated for cause. The

court will also assume arguendo that Bolton was

selected from the ranks. Even so, Bolton cannot

establish that this alleged constitutional injury was

caused by the “execution of a government’s policy or

custom,” such that the City is subject to liability

under § 1983. Monell, 436 U.S. at 694. Bolton does

not dispute that Benavides’s decision was an isolated

incident insufficient to constitute an “official policy”

of the City. See P. Br. 9 (pointing out that Bolton does

not contend that the City can be liable based on a

“longstanding custom or practice”). Consequently, to

determine whether the City can be held liable under'

§ 1983 for Benavides’s decision, the court must decide

whether Benavides “possesse[d] final authority to

establish municipal policy with respect to the action

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

481 (1986). In other words, the court must determine

whether Benavides was a final policymaker with

respect to the precise act in question: terminating

rather than reassigning Bolton

It is undisputed that Benavides had complete

discretion to remove Bolton from the position of Chief

of Police. In fact, as Bolton points out in his brief, the

City Charter expressly forbids the City Council from

25a

interfering with Benavides’s hiring and firing deci-

sions. It provides:

Neither the council nor any of its committees

or members shall dictate or attempt to dic-

tate any person’s appointment to, or removal

from, office or employment by the city man-

ager or any of the city manager’s subordi-

nates, or in any manner interfere in the

appointment of officers and employees in the

departments of administrative service vested

in the manager by this Charter.

Dallas, Tex. City Charter, Ch. III, § 15. But the Char-

ter does not vest in Benavides any discretion regard-

ing whether, after removing the Chief of Police from

that position, he should be restored to a prior or lower

appointive rank within the DPD. The Charter explic-

itly provides that “the chief or the assistant shall be

restored to the rank and grade held prior to appoint-

ment to the position, or reduced to a lower appointive

rank.” Dallas, Tex. City Charter Ch. XII, § 5 (empha-

sis added). “The word ‘shall’ implies that restoration

to a lower rank and grade is mandatory.” Bolton I,

472 F.3d at 265 (citing Valdez v. Cockrell, 274 F.3d

941, 950 (5th Cir. 2001)).

“When an official’s discretionary decisions are

constrained by policies not of that official’s making,

those policies, rather than the subordinate’s depar-

tures from them, are the act of the municipality.” City

of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

Although Benavides was vested with discretion in

deciding whether to remove Bolton from the position

26a

of Chief of Police, his ability to terminate rather than

reassign Bolton was constrained by the limitations of

Chapter XII, § 5.

In Auriemma v. Rice, 957. F.2d 397 (7th Cir.

1992), which the Fifth Circuit cited with approval in

its recent decision in Barrow v. Greenville Independ-

ent School District, 480 F.3d 377 (5th Cir. 2007),

the Seventh Circuit concluded that the Chi-

cago Police Chief, who by city ordinance had

unreviewable discretion to make personnel

decisions, would not have set city policy in.

allegedly discriminating by race. Rather, the

Chief would have violated city policy, embod-

ied in another city council ordinance gener-

ally forbidding racial discrimination in

hiring.

Id. at 382. Specifically, the Seventh Circuit explained

in Auriemma that “[ljiability for unauthorized acts is

personal; to hold the municipality liable, Monell tells

us, the agent’s action must implement rather than

frustrate the government’s policy.” Auriemma, 957

F.2d at 400.

As set forth in Chapter XII, § 5, it was City policy

at the time Bolton was discharged that when the

Chief of Police is selected from within the ranks and

is not removed for cause, he is entitled to continued

employment with the DPD at his prior position or at

a lower appointive rank. As City Manager, Benavides

was “[t]o be responsible to the [city] council for the

proper administration of all the city affairs placed in

27a

the city manager’s hands.” Dallas, Tex. City Charter

Ch. VI, § 2(1). The proper administration of all the

city affairs would certainly have required that

Benavides follow the mandatory directives of the City

Charter. No provision of the City Charter gave

Benavides the power to make policies for the City in

the area of employment or to act in contravention of

the mandates of the City Charter. Benavides was

vested under Chapter VI, § 2(3) with the power to

remove heads of departments and subordinate offi-

cers and employees. But in tasking the City Manager

with the appointment and removal of all heads of

departments, the City Charter did not give Benavides

any final policymaking authority regarding what

happened to these heads of departments when an-

other Charter provision mandated their continued

employment. In fact, Bolton advances several argu-

ments in his brief that inferentially defeat his conten-

tion that ‘Benavides was a final policymaker with

respect to the decision to discharge rather than

reassign Bolton. See P. Br. 1 (arguing that City Man-

ager lacked discretion under City Charter to termi-

nate rather than demote Chief of Police who came

from the DPD ranks and was not discharged for

cause), 6 (“Here, the City’s termination of Bolton was

clearly arbitrary and capricious — given that this

action was contrary to law (i.e., the Dallas City

Charter).”), 8 (“Benavides knew full-well that the

Dallas City Charter required that Bolton be de-

moted[.] ... [H]e ignored the plain language of the

City Charter.”), 12 (“[Benavides] did not have the

discretion to simply flaunt the law. His decision to do

28a

so certainly has the hallmarks of being both arbitrary

and capricious.”), and 13 (referring to “the mandatory

language of the Charter itself.”). The court therefore

concludes that Benavides’s failure to follow Chapter

XII, §5 was an unauthorized departure from City

policy and, as such, varied from, rather than repre-

sented, City policy. See Auriemma, 957 F.2d at 400.

The decision to discharge rather than reassign Bolton

was a departure from the City’s expressed policy, not

an exercise by Benavides of final policymaking au-

thority. Accordingly, the court holds that the City

cannot be held liable for Benavides’s failure to restore

Bolton to the rank and grade he held prior to his

appointment to the position of Chief of Police, or his

failure to reduce him to a lower appointive rank. The

court therefore grants defendants’ motion for sum-

mary judgment dismissing Bolton’s § 1983 claim

against the city.”

* * *

For the foregoing reasons, the court grants

defendants’ May 7, 2007 motion for summary judg-

ment and dismisses Bolton’s § 1983 claims against

Benavides in his official capacity and against the

City. This case is dismissed with prejudice by judg-

ment filed today.

* Having determined that neither Benavides nor the City

can be held liable for Bolton’s alleged constitutional depriva-

tions, the court need not address defendants’ other grounds for

summary judgment.

29a

SO ORDERED.

August 17, 2007.

/s/ SIDNEY A. FITZWATER

SIDNEY A. FITZWATER

UNITED STATES

DISTRICT JUDGE

30a

In the

United States Court of Appeals

for the Fifth Circuit

No. 05-11141

TERRELL BOLTON,

Plaintiff-Appellant,

VERSUS

THE City OF DALLAS, TEXAS,

AND

TEODORO BENAVIDES,

IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Texas

No. 3:04-CV-0501-K

(Filed Dec. 7, 2006)

Before SMITH, BENAVIDES and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Terrell Bolton appeals a summary judgment in

favor of the defendants, the City of Dallas and its city

manager, Teodoro Benavides. Bolton sued under 42

U.S.C. § 1983, alleging that the city had terminated

him from his position as Chief of Police in violation of

the due process clause of the Fourteenth Amendment.

3la

The district court concluded that Bolton lacked a

constitutionally-protected property interest in further

employment with the Dallas Police Department

(“DPD”). Because Chapter XII, § 5 of the Dallas City

Charter creates a constitutionally-protected property

interest, we reverse and remand. We also conclude

that Benavides’s successful defense of qualified

immunity requires dismissal of Bolton’s claims

against Benavides in his individual capacity.

Bolton served as an executive-rank officer of DPD

for fifteen years and in August 1999 was promoted

from assistant chief to chief. In August 2003 city

manager Ted Benavides terminated his employment.

Benavides acknowledges that the dismissal was not

for cause. Bolton claims the city charter mandates

that he be restored to the rank and grade he held

before being appointed chief.

II.

We review a summary judgment de novo, apply-

ing the same standard as did the district court.

Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2005),

cert. denied, 2006 U.S. LEXIS 8734 (U.S. Nov. 13,

2006). All justifiable inferences to be drawn from the

underlying facts must be viewed in the light most

favorable to the nonmoving party. Minter v. Great

Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005). Sum-

mary judgment is appropriate where the record

32a

demonstrates that there is no issue of material fact

and the moving party is entitled to judgment as a

matter of law. Martinez v. Bally’s La., Inc., 244 F.3d

474, 476 (5th Cir. 2001).

IIT.

To succeed on a due process claim in the context

of public employment, a plaintiff must show that (1)

he had a property interest/right in his employment

and (2) his termination was arbitrary or capricious.

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

Cir. 1993) (citing Honore v. Douglas, 833 F.2d 565,

568 (5th Cir. 1987)). Because the district court

granted summary judgment based on its finding that

Bolton lacked a property interest in his employment,

we address only the first prong.

Although public employees can be endowed with

constitutionally-protected property interests in their

employment, a property interest is not incidental to

public employment and must be located in an inde-

pendent source, such as_ tate law. Perry v. Sinder-

mann, 408 U.S. 593, 601 (1972). “A property interest

is created where the public entity has acted to confer,

or alternatively, has created conditions that infer [sic,

' Gilbert v. Homar, 520 U.S. 924, 928-29 (1997) (stating that

“employees who can be discharged only for cause have a consti-

tutionally protected property interest in their tenure and cannot

be fired without due process”); Cleveland Bd. of Educ. v. Loud-

ermill, 470 U.S. 532 (1985).

33a

imply?}, the existence of a property interest by abro-

gating the right to terminate an employee without

cause.” Muncy v. City of Dallas, 335 F.3d 394, 398

(5th Cir. 2003). A public entity can confer a property

interest in public employment through a local ordi-

nance. Bishop v. Wood, 426 U.S. 341, 344 (1976).’

Bolton claims that Chapter XII, § 5 of the charter

grants him a property interest in continued employ-

ment. It states,

If the chief of the police department ... was

selected to that position from the ranks of

the police department and is removed from

the position on account of unfitness for the

discharge of the duties of the position, and

not for any cause justifying dismissal from

the service, the chief... shall be restored to

the rank and grade held prior to appoint-

ment to the position, or reduced to a lower

appointative rank.

DALLAS, TEX., CiITy CHARTER ch. 12, § 5 (2006).

We examined this section in Muncy, 335 F.3d

394. In that case, two executive-rank DPD officers

* Under Texas law, home rule cities “may determine by

charter whether employment in certain city offices is at will or

continuous absent just cause for dismissal, and Texas courts will

give effect to such charter provisions.” Henderson v. Sotelo, 761

F.2d 1093, 1096 (5th Cir. 1985) (citing Ratliff v. City of Wichita

Falls, 115 S.W.2d 1153 (Tex. Civ. App. - Amarillo 1938, writ

dism’d), and City of San Benito v. Cervantes, 595 S.W.2d 917

(Tex. Civ. App. — Eastland 1980, writ ref’d n-r.e.)).

34a

challenged demotions to the highest-rank appoint-

ments they had held before receiving their executive

appointments. They contended that a myriad of

sources, including §5, granted them a protected

property interest in their executive-rank positions. In

examining § 5, we noted that “unfitness for duty” is “a

nebulous status which conceivably could encompass

political unsuitability or any number of other reasons

that fall short of the property-interest conferring,

termination-for-cause standard.” Id. at 399. We found

this particularly true given that the statute inter-

nally defines “unfitness for duty” as “not for any

cause justifying dismissal.” Jd. Interpreting the

provision as a whole, we noted that it “contemplates

that high level officials will be removed from time to

time, and in those instances in which the removal is

not for a cause warranting dismissal, then the official

will be reassigned within the department.” Jd.

Although the city points to language in Muncy

indicating that § 5 serves primarily as a limit on the

city’s ability to retain former executives, id. at 399-

400, it is evident that Muncy does not control the

instant case. Unlike the plaintiffs in Muncy, Bolton

claims a property interest not in his executive-rank

position, but rather in continued employment at the

rank and grade held before his appointment to the

executive position. His argument does not rely on the

“unfitness for duty” language, but rather on the “for

any cause justifying dismissal” language. He asserts

that § 5, by its reference to “any cause justifying

35a

dismissal from the service,” creates a property inter-

est in continued employment.

The plain language of the charter supports

Bolton’s reading. “If the chief ... is removed ... not

for any cause justifying dismissal from the service,”

tracks language that elsewhere has been found to

create a property interest.’ The word “shall” implies

that restoration to a lower rank and grade is manda-

tory."

Even if we were to look beyond the plain lan-

guage, this interpretation makes sense. The chief of

police is a political position, and a chief might be

removed for any number of reasons beyond his con-

trol. Through this charter provision, Dallas is ensur-

ing officers with considerable length of service that

accepting an unstable job will not force them to forfeit

their long tenure within the DPD. It reflects a

* See Perry, 408 U.S. at 600-03 (holding that guidelines

stating that an employee “may expect to continue in his aca-

demic position unless adequate cause for dismissal is demon-

strated in a fair hearing” create a protected property interest);

Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1199 (5th Cir.

1987) (finding a protected property interest where an employee

handbook “contained a provision that employees would be

discharged only for good cause”); United Transp. Union uv.

Brown, 694 S.W.2d 630 (Tex. App. — Texarkana 1985, writ ref’d

n.r.e.) (finding a protected property interest where “the manual

of working conditions provides that no employee will be demoted

without good cause”).

* See, e.g., Valdez v. Cockrell, 274 F.3d 941, 950 (“The word

‘shall’ is mandatory in meaning.”).

56a

balance between the city’s interest in attracting high

quality applicants and its interest in ensuring effec-

tive oversight of the officers who fill executive posi-

tions.

The city responds by claiming that the two

grounds for removal in the charter — “unfitness for

duty” and “for cause justifying dismissal” — do not

exhaust the field of possible reasons for removal of an

executive officer. Although admitting that Bolton was

not removed for cause, the city alleges that he was

discharged because his continued presence would be

“disruptive” rather than because he was unfit for

duty, a reason for removal that would not trigger § 5.

We do not ascribe the same talismanic significance to

“unfitness for duty.” The language that creates a

property interest is “not for any cause justifying

dismissal.” If a chief promoted from within the ranks

is not removed for cause, by the plain language of the

charter he must be restored to his previous position.”

* The City raises alternative grounds for affirmance: that

§ 5 does not apply to Bolton, because he was not selected chief

from “the ranks of the department” and that the city is immune

from suit under § 1983 because Bolton has not pointed to a

policy or custom that violates his rights. Because the district

court concluded that Bolton did not possess a protected property

right, it did not address the factual disputes raised by the city or

whether the c.°v’s policy or custom played a role in the violation

of Bolton’s rights. We leave these arguments for the district

court on remand. See Sanders v. English, 950 F.2d 1152, 1159

n.13 (5th Cir. 1992).

37a

IV.

Benavides asserts in the alternative that any

claims against him in his personal capacity should be

dismissed because he is entitled to qualified immu-

nity. Although the district court did not address the

qualified immunity claim, Benavides asserted the

defense in his answer and raised it in this appeal, so

we may address it.

Once a public official has raised the defense of

qualified immunity, the burden rests on the plaintiff

to rebut it.° On a motion for summary judgment, the

disputed facts to which the plaintiff points must be

sufficient, if plaintiff’s version is accepted, for a

reasonable trier of fact to determine (1) that the

defendant violated the plaintiff’s constitutional rights

and (2) that the violation was objectively unreason-

able. See Fraire v. City of Arlington, 957 F.2d 1268,

1273 (5th Cir. 1992). The inquiry into reasonableness

asks “whether ‘[t]he contours of the right [are] suffi-

ciently clear that a reasonable official would under-

stand that what he is doing violates the right.’” Id.

(citing Anderson v. Creighton, 482 U.S. 635, 640

(1987)). If reasonable public officials could differ as to

whether the defendant’s actions were lawful, the

defendant is entitled to immunity. Malley v. Briggs,

475 U.S. 335, 341 (1986).

* See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997)

(“We do not require that an official demonstrate that he did not

violate clearly established federal rights; our precedent places

that burden upon plaintiffs.”).

38a

Although we now conclude that § 5 of the Dallas

City Charter creates a vested property right in em-

ployment at a former rank for executive-level offi-

cials, this decision is not apparent from Muncy. There

we were considering a due process claim in the con-

text of demotion, but we stated that executive rank

officials are “employees at will, and the city was free

to discharge them without cause.” Muncy, 335 F.3d at

402. If we are to respect the principle underlying

qualified immunity to the effect that officials must be

able reasonably to “anticipate when their conduct

may give rise to damages,” we cannot hold an official

liable for taking action that was arguably supported

by decisions of this court. See Davis v. Scherer, 468

U.S. 183, 195-96 (1984). Bolton’s claim against

Benavides in his personal capacity must be dismissed

based on qualified immunity, because reasonable

public officials could have differed on whether dis-

charging Bolton would violate his constitutional

rights.

In summary, because the charter creates for

Bolton a constitutionally protected property interest

in further employment, the judgment is REVERSED.

Bolton’s claims against Benavides in his individual

capacity are DISMISSED based on qualified immu-

nity. The remaining claims are REMANDED for

further proceedings not inconsistent with this opin-

ion.

39a

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRELL BOLTON, §

Plaintiff, §

y § Civil Action No.

. : § 3:04-CV-0501-K

CITY OF DALLAS, etal, §

Defendants. §

MEMORANDUM OPINION AND ORDER

(Filed Sept. 20, 2005)

The Court has before it Defendants’ Motion for

Summary Judgment. Because Plaintiff Terrell Bolton

(“Plaintiff”) was terminated and not demoted, Chap-

ter 12, Section 5 of the Dallas City Charter confers no

property rights on Plaintiff and for that reason, the

Court GRANTS the motion.

I. Factual Background

Plaintiff was appointed Chief of Police of the

Dallas Police Department (“DPD”) on August 20,

1999, to be effective October 1, 1999. On August 27,

2003, Defendant Ted Benavides (“Benavides”), Dallas

City Manager, terminated Plaintiff's employment. At

the time of termination, Benavides did not state the

reason for the action. At a later date, upon the request

of Plaintiff's counsel, Benavides stated in a letter

twenty reasons for the action. Benavides testified at his

40a

deposition that Plaintiff was not terminated for

cause.

II. Legal Standards

Summary judgment is appropriate when the

pleadings, affidavits and other summary judgment

evidence show that no genuine issue of material fact

exists and the moving party is entitled to judgment as

a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The moving party

bears the burden of identifying those portions of the

record it believes demonstrate the absence of a genu-

ine issue of material fact. Celotex, 477 U.S. at 322-25,

Once a movant makes a properly supported motion,

the burden shifts to the nonmovant to show the

existence of a genuine fact issue for trial; but, the

nonmovant may not rest upon allegations in the

pleadings to make such a showing. id. at 321-25;

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57

(1986). The nonmovant may satisfy this burden by

providing depositions, affidavits, and other competent

evidence; not with “conclusory allegations, specula-

tion, and unsubstantial assertions.” Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.

1996) (en banc). Neither merely colorable evidence

nor a mere scintilla of evidence can defeat a motion

for summary judgment. Anderson, 477 U.S. at 249-52.

All evidence and reasonable inferences must be

viewed in the light most favorable to the nonmovant.

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

4la

III. Property Interest

In his First Amended Complaint, Plaintiff claims

he has “a constitutionally protected property interest

in continued employment with the DPD at the last

Civil Service Rank he fF 2ld prior to being appointed to

the Executive Ranks.” Plaintiff contends the language

of Chapter 12, Section 5 of the Charter confers this

property interest on him. Section 5 states:

If the chief of the police department ...

was selected to that position from the ranks

of the police department and is removed from

the position on account of unfitness for the

discharge of the duties of the position, and

not for any cause justifying dismissal from

the service, the chief... shall be restored to

the rank and grade held prior to appoint-

ment to the position, or reduced to a lower

appointive rank.

Defendants contend Plaintiff did not have a

property interest in his continued employment with

the DPD. Specifically, they argue Section 5 did not

vest Plaintiff with a property interest because (1) he

was not appointed to the executive position from the

ranks of the department, (2) he was not terminated

for unfitness, and (3) Benavides had sufficient reason

to terminate Plaintiff.

Plaintiff responds that Section 5 vested him with

a property interest in continued employment with the

department because, since he was not removed “for

cause,” Section 5 required he be demoted rather than

terminated.

42a

A. Termination for Unfitness

The Court looks first to Defendants’ argument

that Section 5 did not vest Plaintiff with a property

interest in his continued employment with the DPD

because he was not terminated for unfitness. The

Court finds the opinions issued by the Fifth Circuit

and this district court in Muncy v. City of Dallas to

directly address the issue before the Court in this

case. Muncy v. City of Dallas, 2001 WL 1480770, Civ.

Nos. 99-CV-2960P, 00-CV-0588H (N.D. Tex. Nov. 19,

2001) (Solis, J.), aff’d, 335 F.3d 394 (5th Cir. 2003). In

Muncy, the plaintiff-police officers had been removed

from their appointed executive level positions with

the DPD and returned to their prior civil service

ranks prior to their complaints being filed against the

City. One plaintiff had been Executive Assistant Chief

of Police, the second highest command position within

the DPD, then was removed and demoted to Ser-

geant, his highest rankposition before being ap-

pointed to an executive level position. The other

plaintiff had been Deputy Chief of Police, but was

demoted to Lieutenant, his highest rank position. The

plaintiffs argued Section 5 conferred on them a

property interest in their appointed positions. This

court held:

Section 5 is a very specific provision applica-

ble only to one very limited circumstance.

Section 5 sets out the procedure for demotion

of an employee who was promoted to a high-

ranking police position who was found to be

unfit for such position. The Charter sets out

43a

a provision for dealing with this limited cir-

cumstance; it does not provide a blanket

property right for all high-ranking police of-

ficials.

Muncy, 2001 WL 1480770 at *7 (emphasis added). On

appeal, the Fifth Circuit concluded, “Section 5 does

not serve as a limit on the City’s ability to remove in

the first instance, but rather it serves as a limit on

the City’s ability to retain a former executive at his

previous rank.” Muncy, 335 F.3d at 399-400. The Fifth

Circuit found that an employee at an executive level

may be retained in the police department only when

“the ‘unfitness for duty’ does not rise to the level of

‘cause warranting dismissal.’” Jd. at 399. The court

also pointed out that removal of an executive level

employee is not conditioned on cause or even unfit-

ness. Jd. Rather, Section 5 addressed only this specific

instance of the City’s ability to retain an employee.

See id. at 399-400.

This Court acknowledges the property interest

the Muncy plaintiffs claimed was one in their contin-

ued employment in their executive level positions,

while this Plaintiff claims a property interest in his

continued employment in his prior civil service rank

prior to being in an executive level position. Despite

this difference, the analysis in the Muncy opinions

are on point, directly addressing the issue of whether

Section 5 confers any property rights to an executive

level employee. Both courts analyzed in depth Section

5 and to what situations it was intended to apply.

This Court understands these opinions to hold that

44a

Section 5 was intended to apply only to situations

involving the choice of the City to retain an executive

level employee removed from his position. Section 5

was not intended to provide the City an either/or

scenario in relation to the removal of an executive

level employee, in that either the employee is unfit

for duty and thereby demoted, or the employee is

terminated for cause. The Muncy opinions establish

for this Court that Section 5 was not intended to limit

the City to only two reasons for removing or termi-

nating an executive level employee, that being either

unfitness or cause. Muncy stands for the proposition

that the City manager may terminate the police chief

or the City manager may demote the police chief. If

the City manager chooses to demote the police chief,

then the police chief shall be placed at his prior civil

service position just before becoming chief. This case

applies to the situation involving the level to which

an executive level employee may be demoted if not

fired.

Applying the courts’ reasoning and holdings in

this case, this Court finds that Section 5 does not

confer any property rights to Plaintiff. Section 5 does

not apply in this case because Plaintiff was termi-

nated, not demoted, and the Muncy opinions establish

that Section 5 was intended to apply only to situa-

tions involving the demotion of an executive-level

position. See Muncy, 335 F.3d at 399-400; Muncy,

2001 WL 1480770, at *6-7.

Because the Court finds Plaintiff did not have a

property interest in his prior rank position, the Court

45a

need not address the viability of Plaintiff’s remaining

claims.

IV. Conclusion

The Court finds case law clearly provides that

Plaintiff did not have a property interest in his prior

rank position with the DPD by virtue of Section 5.

Accordingly, because no fact issue exists, the Court

GRANTS Defendants’ motion for summary judg-

ment.

SO ORDERED.

Signed September 20th, 2005.

s/ Ed Kinkeade

ED KINKEADE

UNITED STATES

DISTRICT JUDGE

46a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10999

TERRELL BOLTON

Plaintiff-Appellant

CITY OF DALLAS TEXAS: CITY MAN-

AGER TEODORO BENAVIDES, In His

Official Capacity

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas, Dallas

ON PETITION FOR REHEARING EN BANC

(Filed Sept. 9, 2008)

(Opinion 8/7/08, 5 Cir. ___, _~ _ F.3d__)

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:

(X) Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor

judge in regular active service of the court having

requested that the court be polled on Rehearing En

47a

Banc (FED. R. App. P. and 5TH Cir. R. 35), the Petition

for Rehearing En Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. The court having been polled

at the request of one of the members of the court and

a majority of the judges who are in regular active

service and not disqualified not having voted in favor

(FED. R. App. P. and 5TH Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]

United States Circuit Judge

48a

STATUTE AND CHARTER

PROVISIONS INVOLVED

Section 1983 of 42 U.S.C. provides:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the

United States or other person within the ju-

risdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for re-

dress. |

Chapter III, section 15 of the Dallas City Charter

provides:

Neither the council nor any of its committees

or members shall dictate or attempt to dic-

tate any person’s appointment to, or removal

from, office or employment by the city man-

ager or any of the city manager’s subordi-

nates, or in any manner interfere in the

appointment of officers and employees in the

departments of administrative service vested

in the manager by this Chapter.

Chapter XII, section 5 of the Dallas City Charter

provided at all relevant times”:

* This provision was repealed in 2005, several years after

the events giving rise to this action. (App. 18a).

49a

If the chief of the police department ... was

selected to that position from the ranks of

the police department and is removed from

the position on account of unfitness for the

discharge of the duties of the position, and

not for any cause justifying dismissal from

the service, the chief... shall be restored to

the rank and grade held prior to appoint-

ment to the position, or reduced to a lower

appointive rank.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.