Warnock v. Pecos County, Texas

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-50869

Summary Calendar.

Bettye WARNOCK, Plaintiff-Appellant,

v.

PECOS COUNTY, TEXAS, et al., Defendants,

Alex Gonzalez, Individually and in his Official Capacity as Pecos
County District Judge; Brock Jones, Individually and in his
Official Capacity as Pecos County District Judge, Defendants-
Appellees.

July 3, 1997.

Appeal from the United States District Court for the Western
District of Texas.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

I.

Bettye Warnock, formerly auditor for Pecos County, brought

this § 1983 suit to recover damages and obtain prospective relief

from Pecos County and its two state district judges, Alex Gonzalez

and Brock Jones. She alleges that these judges violated her First

Amendment rights when they chose not to appoint her to a second

two-year term as county auditor after she brought to light

"violations of laws and administrative regulations of the State of

Texas and of the policies and ordinances of Pecos County, Texas."

1
She sued the judges in both their official and individual

capacities.

In an unsuccessful suit filed in Texas state court in May of

1993, she alleged that the county violated the Texas Whistleblower

Act, Tex.Rev.Civ. Stat. Ann. art. 6252-16a (West 1993) (currently

codified as amended at Tex. Local Gov't Code § 554.001 et seq.

(West 1994 & Supp.1997)). Although this statute allows a state

prosecutor to recover civil penalties from individual officials, it

does not permit private suits against officials acting in their

individual capacities. Tex.Rev.Civ. Stat. Ann. art. 6252-16a §

5(a); Tex. Local Gov't Code § 554.008. The county won a summary

judgment in the trial court, and the Texas Court of Appeals

affirmed.

Based on the whistleblowing suit, the district court below

held that Warnock was precluded from recovering against the county.

The district court dismissed the county with prejudice, and Warnock

did not appeal.

Warnock did, however, appeal the district court's further

conclusion that the Eleventh Amendment and qualified immunity

principles barred her claims against the two judges. We vacated

the judges' dismissals. Warnock v. Pecos County, 88 F.3d 341 (5th

Cir.1996). We instructed the district court on remand that the

Eleventh Amendment does not protect state officials acting in their

official capacities from claims for reinstatement and attorneys'

2
fees when they violate federal law. We also asked the court to

reconsider the issue of qualified immunity in light of our opinion

in Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc).

On remand, the district court once again dismissed the judges

in their official capacities, and Warnock has not appealed those

dismissals. With respect to the claims against the judges

individually, Warnock followed the Rule 7(a) procedure that we

outlined in Schultea. The judges filed a response in which they

argued that they were entitled to qualified immunity. Although the

county noted that it had already been dismissed, it filed a similar

pleading urging the court to dismiss the judges on the grounds of

qualified immunity.

Instead of deciding the immunity issue, the district court

granted summary judgment on the theory that Warnock's state suit

against the county precludes the present suit against the judges

individually.

II.

We cannot sanction this application of the doctrine of res

judicata. First, under Fed.R.Civ.P. 8(c), res judicata is an

affirmative defense that courts generally should not raise sua

sponte. Carbonell v. Louisiana Dept. of Health & Human Resources,

772 F.2d 185, 189 (5th Cir.1985). We have recognized two

exceptions, but neither applies here. The prior suit was not

brought in the Western District of Texas. And the district court

3
does not appear to have had all relevant records before it and to

have been confronted with "the demands of comity, continuity in the

law, and essential justice." Id.

Second, even if the court properly raised the issue of res

judicata, there was no identity of parties. Warnock did not sue

Judges Gonzalez and Jones in her state action. Nor was there

privity between the county and the judges in their individual

capacities. See Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir.)

(holding that a prior suit against a municipality does not bar a

subsequent suit against officials individually because

official-capacity and personal-capacity suits involve different

legal theories and defenses), cert. denied, 488 U.S. 856, 109 S.Ct.

147, 102 L.Ed.2d 118 (1988); Headley v. Bacon, 828 F.2d 1272,

1277-79 (8th Cir.1987) (distinguishing privity between principal

and agent from privity between a governmental entity and officials

sued in their individual capacities). See also Howell

Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) ("Res

judicata does not apply when the parties appear in one action in a

representative capacity and in a subsequent action in an individual

capacity." (citing Clark v. Amoco Production Co., 794 F.2d 967, 973

(5th Cir.1986))); Restatement (Second) of Judgments § 36(2) (1982)

("A party appearing in an action in one capacity, individual or

representative, is not thereby bound by or entitled to the benefits

of the rules of res judicata in a subsequent action in which he

4
appears in another capacity.").

III.

Judges Gonzalez and Jones invite us to affirm the dismissal by

reaching the issue of qualified immunity. Because the immunity

question would almost certainly arise before the district court,

and because we have access to all the relevant pleadings, we will

decide it. We conclude, however, that Warnock has defeated the

judges' immunity from discovery and thus that the judges' motion to

dismiss should be denied. We remand for further proceedings

consistent with this opinion.

A.

Warnock's Rule 7(a) reply lists dozens of violations of law

or fiscal improprieties committed by county officials or

compromising county funds. For each violation, Warnock indicates

the year in which the incident occurred; in many cases, she

indicates the month of the year. She also provides the names and

offices of the state and county officials to whom she reported the

violations. We have no trouble concluding that Warnock's Rule 7(a)

reply is sufficiently detailed to satisfy the heightened pleading

requirements that we reinforced in Schultea v. Wood, 47 F.3d 1427

(5th Cir.1995) (en banc).

A sample of Warnock's allegations shows that her claim is

sufficiently particularized. She asserts that she reported to

Judge Gonzalez's chambers in June of 1991 that his wife had

5
improperly used county phone services. The next month, she told

Judge Jones that the district attorney was holding forfeiture funds

unlawfully. In January of 1992, she brought to both judges'

attention alleged violations of Texas bidding statutes. She told

the county treasurer on several occasions about matters such as the

unauthorized release of pledged securities, incorrect amounts paid

to the state, illegal early releases of paychecks, and violations

of laws governing rapid deposits. She notified county officials of

violations of state statutes on travel reimbursements. She told

the commissioners court that its use of tax money for a prison

water tank was improper. The list goes on. This detailed Rule

7(a) reply "alleg[es] with particularity all material facts on

which [Warnock] contends [she] will establish [her] right to

recovery, which ... include[s] detailed facts supporting the

contention that the plea of immunity cannot be sustained." Elliott

v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985). See also Schultea,

47 F.3d at 1434 (embracing "the practical core" of Elliott ).

The judges contend that most of Warnock's detailed allegations

are irrelevant because only about a dozen involve reports to the

judges themselves. Given the context, however, we will not require

Warnock to plead the details of how Judges Gonzalez and Jones

learned about each report to various state and county officials.

The judges may not have known about every last report, but we can

suppose that their duty to decide whether to re-appoint Warnock to

6
the auditor's office led them to inquire into her communications

with entities such as the county treasurer's office, the county

attorney's office, and the commissioners court. See Siegert v.

Gilley, 500 U.S. 226, 236, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277

(1991) (Kennedy, J., concurring) (asserting that the requirement of

"specific, nonconclusory factual allegations" does not prevent a

plaintiff from relying on circumstantial evidence).

B.

In order to survive the judges' motion to dismiss, Warnock's

specific allegations must portray an objectively unreasonable

violation of clearly established First Amendment law. Siegert, 500

U.S. at 231, 111 S.Ct. at 1793; Burns-Toole v. Byrne, 11 F.3d

1270, 1274 (5th Cir.), cert. denied, 512 U.S. 1207, 114 S.Ct. 2680,

129 L.Ed.2d 814 (1994). We conclude that, as described in

Warnock's pleadings, the judges' decision not to re-appoint Warnock

violated the First Amendment. We further conclude that the

relevant First Amendment law was clearly established when the

judges made their decision in 1993 and that firing a Texas county

auditor for reporting violations of the law is objectively

unreasonable.1

For our purposes, there is no difference between firing and
declining to re-appoint. See Branti v. Finkel, 445 U.S. 507, 512
n. 6, 100 S.Ct. 1287, 1291 n. 6, 63 L.Ed.2d 574 (1980) ("[T]he lack
of a reasonable expectation of continued employment is not
sufficient to justify a dismissal based solely on an employee's
private political beliefs."); Elrod v. Burns, 427 U.S. 347, 359 n.
13, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976) (plurality opinion)

7
 1.

Because Warnock is a public employee, her allegations must

survive a three-part test in order to state a violation of the

First Amendment. First, the relevant speech must involve a matter

of public concern. Second, her interest in commenting on the

matter of public concern must outweigh her employer's interest in

promoting efficiency. And third, her protected speech must have

motivated her public employer's decision to fire her. Connick v.

Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708

(1983) (citing Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct.

1731, 20 L.Ed.2d 811 (1968)); Wallace v. Texas Tech Univ., 80 F.3d

1042, 1050 (5th Cir.1996); Thompson v. City of Starkville, 901

F.2d 456, 460 (5th Cir.1990).

"There is perhaps no subset of "matters of public concern'

more important than bringing official misconduct to light." Davis

v. Ector County, 40 F.3d 777, 782 (5th Cir.1994). See also

(rejecting the notion that employees who accept partisan
appointments have waived their right to bring a First Amendment
suit when their political patrons lose power and a newly elected
regime fires them based solely on party affiliation); Brady v.
Fort Bend County, 58 F.3d 173, 175 (5th Cir.1995) ("Both "firing'
and "failing to hire' are "triggering personnel decision[s].' "),
reh'g en banc granted (5th Cir. Aug. 25, 1995) and dismissed for
lack of jurisdiction (5th Cir. Nov. 17, 1995); McBee v. Jim Hogg
County, 730 F.2d 1009, 1015 (5th Cir.1984) (en banc) ("[T]he fact
that the deputies were terminated by a "failure to rehire' rather
than a "dismissal' is irrelevant to the question of whether they
were impermissibly terminated for exercising First Amendment
rights." (footnote omitted) (citing Branti )).

8
Connick, 461 U.S. at 149, 103 S.Ct. at 1691 (finding that improper

pressure on assistant district attorneys to work in political

campaigns is a matter of public concern). By reporting specific

wrongs and abuses within the county government, Warnock was

attempting to improve the quality of government. Her allegations

hardly suggest a merely personal concern for her working

conditions, job security, and the like. The content, context, and

form of Warnock's statements, see Thompson, 901 F.2d at 461-67,

indicate that they addressed issues necessarily of concern to the

public.

The defendants argue that Warnock was speaking as an employee

rather than as a citizen and thus that her public employer could

terminate her without regard to whether her speech involved matters

of public concern. In essence, they contend that they could fire

Warnock because it was her job to serve the public by investigating

governmental waste and abuse. Citing Connick, we have announced

that "our task is to decide whether the speech at issue in a

particular case was made primarily in the plaintiff's role as

citizen or primarily in his role as employee." Terrell v.

University of Texas System Police, 792 F.2d 1360, 1362 (5th

Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d

997 (1987). But the plaintiff's statements in Terrell were tied to

a personal employment dispute. Terrell does not stand for the

proposition that an employee hired to make disinterested criticisms

9
of her employer loses the protection that the First Amendment

grants to those who speak out in the public interest. See Wallace,

80 F.3d at 1051 (indicating that "speech made in the role as

employee" can be of public concern when it "involv[es] the report

of corruption or wrongdoing to higher authorities"); Wilson v.

University of Texas Health Center, 973 F.2d 1263, 1269 (5th

Cir.1992) ("[T]he rule proposed by the defendants could ironically

facilitate the suppression of speech through a requirement that the

speech be made."), cert. denied, 507 U.S. 1004, 113 S.Ct. 1644, 123

L.Ed.2d 266 (1993).

In weighing the value of Warnock's speech against the county's

interest in efficiency, we generally focus on three factors: "(1)

whether the speech was likely to generate controversy and

disruption; (2) whether the speech impeded the general operation

of the department; and (3) whether the speech affected the working

relationships necessary to the proper functioning of ... County

administration." Davis, 40 F.3d at 783. These factors help us

determine when a worker's interest in protected speech fails to

match up to the public employer's interest in having the employee

contribute to the smooth operation of the workplace.

Warnock presents an unusual case because the Texas legislature

has assigned auditors the task of disrupting the workplace when its

smooth operation conflicts with legal requirements or compromises

the public's interest in fiscal responsibility. In other words,

10
Texas gives county auditors responsibility for guarding the public

purse and using the authority of the auditor's office to ensure

that local governments comply with the law. Under Texas Local

Government Code § 112.006(b), for example, "[t]he county auditor

shall see to the strict enforcement of the law governing county

finances." This involves "general oversight of the books and

records of a county, district, or state officer authorized or

required by law to receive or collect money or other property that

is intended for the use of the county or that belongs to the

county." Tex. Local Gov't Code § 112.006(a) (West 1988). Texas

law requires the approval of the county auditor before a county

pays any claim, bill, or account. Id. § 113.064(a). To make

auditors' examinations effective, the legislature has given county

auditors access to county records and accounts. Id. §§ 115.001-

115.021; id. § 115.0035 (Supp.1997). Because the auditor is

supposed to patrol county business and check any tendency toward

corruption or inefficiency, the auditor's duties are discretionary

rather than ministerial. Smith v. McCoy, 533 S.W.2d 457, 459

(Tex.Civ.App.—Dallas 1976, writ dism'd).

In the bulk of First Amendment cases brought by public

employees, the governmental employer has a legitimate interest in

terminating employees whose criticisms intrude on the workplace

harmony that tends to facilitate the efficient operation of

government functions. In this case, however, the statutes of the

11
State of Texas articulate an interest in stirring up controversy

when county auditors discover misappropriations of county funds.

Although Warnock's position was not merely ministerial, she was not

a "policymaker" hired to implement the agenda of the county or the

judges. As the statutory scheme shows, Warnock was to use her

discretion to scrutinize county expenditures, not to enable county

officials to spend money as they saw fit. The job of county

auditor, then, is not within "that narrow band of fragile

relationships requiring for job security loyalty at the expense of

unfettered speech." Gonzalez v. Benavides, 712 F.2d 142, 150 (5th

Cir.1983).

At this stage, of course, we are not in a position to

determine whether any misappropriations or other violations have

taken place. But if Warnock's allegations are true, and we say

nothing about that, Judges Gonzalez and Jones may not rely on the

county's interest in an efficient workplace. When a public

employer grants an employee the task of serving as ombudsman within

a particular field, it may not fire that employee for accurate and

thorough criticisms of the relevant governmental practices.

Finally, Warnock must show that her protected speech caused

Judges Gonzalez and Jones to decide not to re-appoint her. As we

have noted, the allegations, if believed, could support an

inference that the judges knew about the bulk of Warnock's reports.

We also conclude that evidence supporting these allegations could

12
sustain Warnock's burden of demonstrating that her effort to air

the county's fiscal problems was "a substantial or motivating

factor" in the judges' decision. Harrington v. Harris, 108 F.3d

598, 603 (5th Cir.1997) (citing Mt. Healthy City School Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d

471 (1977)). At this stage, it is difficult to know whether

Warnock had extensive auditing authority over Judges Gonzalez and

Jones and their court staff. On remand, resolution of the

causation issue may turn on whether the district judges had reason

to prefer a less inquisitive auditor. We decide only that Warnock

has raised an inference that the judges preferred a less aggressive

advocate for county fiscal responsibility.

An inference is just that. We do not know what discovery may

bring. We say only that Warnock's pleadings state a First

Amendment violation.

2.

We must next ask whether the judges' qualified immunity

protects them from having to answer Warnock's allegations. The

judges are entitled to immunity from suit if "reasonable public

officials could differ on the lawfulness of the [judges'] actions."

Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir.1996). "[G]overnment

officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

13
which a reasonable person would have known." Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

See also Anderson v. Creighton, 483 U.S. 635, 638-41, 107 S.Ct.

3034, 3038-40, 97 L.Ed.2d 523 (1987). The law in force at the time

of the violation must outline the contours of the rights allegedly

violated, or else qualified immunity would give public officials

little protection. See Anderson, 483 U.S. at 638-40, 107 S.Ct. at

3038-39. But "[t]his is not to say that an official action is

protected by qualified immunity unless the very action in question

has previously been held unlawful." Id. at 640, 107 S.Ct. at 3039.

Warnock's term ended on March 5, 1993.2 Case law prior to

that date contained many discussions of what sort of speech

implicates public concerns. Most importantly, the judges had the

advantage of our opinion in Wilson v. University of Texas Health

Center, 973 F.2d 1263, 1268-70 (5th Cir.1992), cert. denied, 507

U.S. 1004, 113 S.Ct. 1644, 123 L.Ed.2d 266 (1993), in which we

explained that a public employee can make a single statement both

as an employee and as a citizen. Like the plaintiff in Wilson, a

police officer who reported sexual abuse to her superiors, Warnock

"had a stake as an individual citizen in having [fiscal

At this stage in the proceedings, it is difficult to know when
the judges made the decision that Warnock alleges violated the
First Amendment. For the purposes of the motion to dismiss, we
assume that March 5, 1993, is the relevant date. This assumption
does not bar further factual or legal arguments about when the
judges terminated Warnock.

14
irresponsibility] stopped, regardless of whether her reports also

coincided with her job responsibilities." Id. at 1270.

Furthermore, at the time of the judges' decision we had already

declared that public officials must "engage in McBee-Pickering-

Connick balancing before taking disciplinary action." Click v.

Copeland, 970 F.2d 106, 112 (5th Cir.1992). In light of the

purposes of Warnock's office, we conclude that First Amendment law

at the beginning of March of 1993 clearly established that county

officials may not terminate a county auditor for diligently

monitoring county finances and speaking out about genuine fiscal

problems.

Clearly established law will not defeat qualified immunity if

"an objectively reasonable view of the facts" might lead an

official not to realize that he was breaking the law. Matherne v.

Wilson, 851 F.2d 752, 756 (5th Cir.1988). But our consideration of

the judges' motion to dismiss does not present circumstances that

suggest a misunderstanding of the facts. According to Warnock's

particularized allegations, Judges Gonzalez and Jones had ample

information about her surveillance of public funds and based their

decision on what they knew about her aggressive enforcement

efforts. With discovery, the able district judge will be able to

take another look at the defense of qualified immunity and decide

if the case should proceed to trial.

IV.

15
 The dismissals of Judges Gonzalez and Jones in their

individual capacities based on res judicata are REVERSED. We

instruct the district court to deny the judges' motion to dismiss

on grounds of qualified immunity and REMAND the case for further

proceedings.

REVERSED and REMANDED with instructions.

16