United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 13, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-40711
____________
BAUDELIO CASTILLO; JUAN MEZA; RICHARD ACEVEDO;
BRENT KENNEDY,
Plaintiffs-Appellees,
versus
CITY OF WESLACO; ET AL,
Defendants
FRANK CASTELLANOS, City Manager; J D MARTINEZ, Police
Chief; ENRIQUE GONZALEZ, Assistant Police Chief,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
Before KING, Chief Judge, and REAVLEY and GARZA, Circuit Judges.
PER CURIAM:
Defendants-Appellants, Frank Castellanos, J.D. Martinez, and Enrique Gonzalez (collectively
“the Appellants”), bring this interlocutory appeal from the district court’s denial of their summary
judgment motion asserting qualified immunity against the § 1983 claims brought by Plaintiffs-
Appellees, Baudelio Castillo, Juan Meza, Richard Acevedo and Brent Kennedy (collectively “the
Officers”). We previously remanded this case to the district court with instructions to file a
supplemental order identifying the factual scenario it presumed when it determined that the Appellants
were not entitled to qualified immunity. We now remand to the district court so that it may enter an
amended order on the summary judgment motion consistent with the findings of its supplemental
order.
I
This lawsuit arises out of a dispute between two competing unions over which will be the
designated bargaining agent for the Weslaco police force, the suspension and termination of Baudelio
Castillo, and allegations that the Weslaco Police Department retaliated against the Officers for their
participation in the activities of one of the competing unions. The Texas Municipal Police
Association (“TMPA”) is the exclusive recognized bargaining agent for the Weslaco police force.
See TEX LOC. GOV’T CODE ANN. § 174.102.1 The Officers founded and operated a rival police union
called the Weslaco Law Enforcement Association (“WLEA”). WLEA seeks to displace TMPA as
the exclusive recognized bargaining agent for the police officers in the City of Weslaco. The Officers
allege that Police Chief Martinez, Assistance Police Chief Gonzalez, and City Manager Castellanos
used their official positions to retaliate against the Officers for their union activities.
The Officers initiated this case in state court raising both state law claims and First
Amendment claims under § 1983. The Appellants promptly removed to federal court. The parties
exchanged discovery and multiple motions for summary judgment, including one in which the
Appellants asserted qualified immunity from this suit. After a status conference, the district court
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§ 174.102. RECOGNITION OF BARGAINING AGENT FOR POLICE OFFICERS. A
public employer shall recognize an asso ciation selected by a majority of the police officers of the
police department of a political subdivision as the exclusive bargaining agent for the police officers
of that department unless a majority of the police officers withdraw the recognition. Added by Acts
1993, 73rd Leg., ch. 269, § 4, eff. Sept. 1, 1993.
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reserved judgment on the Appellants’ assertion of qualified immunity and granted the Officers leave
to file a Third Amended Complaint. In that complaint, the Officers raised only the First Amendment
claims that are the subject of this appeal.
The Officers alleged that the Welsaco Police Department, through the actions of Martinez and
Gonzalez, established a practice and custom of “retaliating against, harassing and intimidating in any
possible way those officers involved with the WLEA.” Further, they alleged that “this policy was
acquiesced to and ratified by” City Manager Castellanos by his refusal to “exercise his right and
authority to put a stop to the Defendants’ unlawful conduct.” Finding that the Officers sufficiently
alleged a violation of clearly established federal law, the district court denied the Appellants’ motion
for summary judgment asserting qualified immunity and scheduled the case for trial. The Appellants
appealed. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806 (1985) (authorizing
interlocutory appeal from the “denial of a claim of qualified immunity”).
On appeal, we noted that the district court had not “highlight[ed] evidence that, if interpreted
in the light most favorable to the plaintiffs, identifies conduct by the defendant that violated clearly
established law.” Castillo v. City of Weslaco, 369 F.3d 504, 506 (5th Cir. 2004). We therefore
remanded the case, instructing the district court to “provide a supplemental order setting forth the
factual scenario that it assumed in construing the summary judgment evidence in the light most
favorable to the Officers and therefore denying the Appellants’ motion for summary judgment based
on qualified immunity.” Id. at 507.
In its responsive supplement order, the district court concedes that, upon further review, it
would modify its order to grant the Appellants’ summary judgment motion with respect to two of the
Officers, Juan Meza and Brent Kennedy.
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II
We VACATE the district court’s denial of summary judgment and REMAND to the district
court so that it may enter an order consistent with the findings in its supplemental order. Upon entry
of the new order, any party who wishes to appeal should file a new notice of appeal, such appeal to
be heard by this panel. In the event of such an appeal, we will consider all briefs filed prior to
issuance of the district court’s supplemental order. In addition, upon re–filing of notice of appeal,
the parties may file supplemental briefs addressing the district court’s new order.
VACATED and REMANDED. Jurisdiction is not retained. Each party shall bear its own
costs.
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