Case: 16-41310 Document: 00514038389 Page: 1 Date Filed: 06/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41310 FILED
June 19, 2017
ALEXANDER EDIONWE, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
GUY BAILEY; HAVIDAN RODRIGUEZ; THE UNIVERSITY OF TEXAS -
PAN AMERICAN; THE UNIVERSITY OF TEXAS SYSTEM; THE
UNIVERSITY OF TEXAS RIO GRANDE VALLEY,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, JONES, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
This is one of at least seven wrongful termination cases arising out of the
legislative abolition of the University of Texas-Pan American (“UTPA”) and the
University of Texas at Brownsville (“UTB”). For the reasons explained below,
we AFFIRM in part and DISMISS in part.
I.
In 1994, Alexander Edionwe was hired as an Associate Professor at
UTPA. From 1994 to 1997, he served as the Program Coordinator of the
school’s Dietetics Program, and was awarded tenure from UTPA and the
University of Texas System Board of Regents on or about September 1, 2000.
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As a tenured faculty member, he was entitled to continuing employment at
UTPA “until retirement or resignation unless terminated because of
abandonment of academic programs or positions, financial exigency, or good
cause.”
In December 2013, the Texas Legislature passed legislation to “abolish[]”
UTPA and UTB—effective August 31, 2015—and create a consolidated
university in southern Texas later named the University of Texas Rio Grande
Valley (“UTRGV”). 2013 Tex. Sess. Law Serv. 1849-1854 (West). “In
recognition of the abolition of” UTPA and UTB, the legislature ordered the
board of regents to “facilitate the employment at [UTRGV] of as many faculty
and staff of the abolished universities as is prudent and practical,” but left the
exact procedures for carrying out this mandate up to the board’s discretion. Id.
at 1853. As such, the board developed a bifurcated application process for
employment at UTRGV. Details about the application process were published
on July 18, 2014, in a document titled “Hiring of Tenured and Tenure-Track
Faculty Members to The University of Texas Rio Grande Valley Frequently
Asked Questions.”
Phase I hiring was open only to tenured and tenure-track faculty
members from UTPA and UTB—whose “faculty appointments and tenure”
were all scheduled to “terminate” on the day those universities were abolished.
The board instructed the President of UTRGV to “recommend that the Board
of Regents grant tenure to” all applicants who, in addition to satisfying six
other requirements, held a “full-time, tenured faculty appointment” at UTPA
or UTB and “timely complete[d] and submit[ted] all forms required by UTRGV
to express the individual’s interest in and qualifications for a tenured faculty
appointment at UTRGV.” UTRGV accepted Phase I applications from August
11, 2014 to September 8, 2014, a period of four weeks. On November 4, 2014,
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UTRGV began accepting applications for Phase II, which was open to the
general public and UTPA and UTB faculty not hired during Phase I.
One week before UTRGV published its Frequently Asked Questions
about Phase I hiring, Edionwe left the country to visit Nigeria. At oral
argument, Edionwe’s attorney admitted that Edionwe was only gone “for a four
week period”—meaning he returned on or about August 8, 2014, approximately
three days before the Phase I application period even began. Edionwe failed to
submit a timely application prior to the September 8, 2014 deadline. In October
2014, he contacted UTRGV and was instructed to wait and apply during Phase
II.
On or about April 15, 2015, Edionwe submitted his Phase II application
for an associate professorship in the Coordinated Program in Dietetics. He was
interviewed on June 4, 2015 and again a week later. However, on August 5,
2015, he was informed that the position would not be filled. His employment
and tenure at UTPA terminated on August 31, 2015.
Edionwe sued UTPA, UTRGV, the UT System, UTRGV President, Guy
Bailey, and UTPA President, Hadian Rodriguez, in the 139th Judicial District
Court of Hidalgo County, Texas, pursuant to 42 U.S.C. §§ 1983 and 1988,
alleging violations of procedural and substantive due process. He also sought
declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice and
Remedies Code. In his original complaint, he did not allege any specifics
concerning the hiring process. The Defendants removed the case to federal
court and filed a Rule 12(c) motion for judgment on the pleadings. Edionwe
filed a response, or in the alternative, motion for leave to amend pleadings. The
district court granted the motion for judgment on the pleadings, holding that
Edionwe: (1) failed to establish a procedural due process claim because the
legislative process afforded Edionwe all the due process he was entitled to
receive; (2) failed to establish a substantive due process claim because he failed
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to allege that the legislative action in question was not rationally related to a
legitimate state interest; and (3) that his Declaratory Judgment Act claim
must be dismissed because all of the Defendants were entitled to immunity. It
failed to address Edionwe’s alternative motion for leave to amend and issued
a final judgment.
Edionwe then filed a motion to alter or amend judgment, which among
other things renewed his request to amend his pleadings, attaching a proposed
first amended complaint. The amended complaint included the above-
mentioned details about the bifurcated hiring process. The district court denied
his motion. Edionwe timely appealed.
II.
A district court’s grant of a Rule 12(c) motion for judgment on the
pleadings is reviewed de novo. See Bosarge v. Miss. Bureau of Narcotics, 796
F.3d 435, 439 (5th Cir. 2015). “The standard for dismissal under Rule 12(c) is
the same as that for dismissal for failure to state a claim under Rule 12(b)(6).”
Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557
(2007)). We “accept all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816
(5th Cir. 2012) (alteration omitted).
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A district court’s denial of a motion to amend the pleadings is reviewed
for abuse of discretion. Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013). “[A]
court should freely give leave” to amend pleadings “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Likewise, “[a] district court’s denial of a motion to alter
or amend judgment ‘is reviewed for abuse of discretion and need only be
reasonable.’” Farquhar v. Steen, 611 F. App’x 796, 800 (5th Cir. 2015) (quoting
Whelan v. Winchester Prod. Co., 319 F.3d 225, 231 (5th Cir. 2003)).
III.
Section 1983 enables persons who have been “depriv[ed] of any rights,
privileges, or immunities secured by the Constitution and laws” of the United
States by the actions of a person or entity operating under color of state law to
seek redress from those state actors responsible for the deprivations. 42 U.S.C.
§ 1983. Edionwe claims that administrators Bailey and Rodriguez violated his
procedural and substantive due process rights by terminating his property
interest in continuing employment. We disagree.
A. Property Interest
The first inquiry in every due process challenge—whether procedural or
substantive—is whether the plaintiff has been deprived of a protected interest
in property or liberty. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59
(1999) (quoting U.S. Const. amend. XIV). “To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it.
He must have more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564,
576 (1972). Such entitlements are “not created by the Constitution. Rather,
they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.” Paul
v. Davis, 424 U.S. 693, 709 (1976).
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It is undisputed that Edionwe had a legitimate property interest in
continuing employment at UTPA: “a tenured faculty member . . . ha[s] a
constitutionally protected interest in his employment.” Newman v. Kock, 274
S.W.3d 697, 706 (Tex. Ct. App. 2008); see also Perry v. Sindermann, 408 U.S.
593, 599 (1972). But, Edionwe advances a number of theories to support his
contention that he had also acquired a constitutionally protected interest in
continuing employment at UTRGV and the UT System as a whole.
First, Edionwe argues that his property interest in employment at
UTRGV and the UT System flowed from his tenure and twenty-one years of
service at UTPA. But, “[u]nlike many . . . institutions of higher learning,
faculty in the University of Texas system are tenured to their particular
component institution . . . .” Tex. Faculty Ass’n v. Univ. of Tex. at Dallas, 946
F.2d 379, 386 (5th Cir. 1991); see also Board of Regents’ Rules and Regulations
31007 § 1. As such, the property rights accumulated due to service at one
university do not transfer to the others. Edionwe had no more interest in
employment at UTRGV than he did at the University of Texas at Austin or at
Harvard.
Edionwe’s second argument, that “the 2013 legislation consolidating
and/or abolishing UTPA and UTB . . . created an expectancy of transition” to
and employment at UTRGV is similarly unavailing. While the legislature did
guarantee that all “student[s] admitted to or enrolled at [UTPA] on the date of
abolition [are] entitled to admission to [UTRGV],” it merely instructed the
board of regents to “facilitate the employment at [UTRGV] of as many faculty
and staff of [UTPA] as is prudent and practical.” 2013 Tex. Sess. Law Serv.
1853 (West) (emphasis added). At most this created a “unilateral expectation”
of employment, not a legitimate entitlement. Roth, 408 U.S. at 576.
Finally, Edionwe attempts to ground his alleged property interest in
employment at UTRGV in two statements made by UTRGV administrators.
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First, Bailey, UTRGV’s president, allegedly said that “UTPA and UT
Brownsville’s faculty were being merged into UTRGV.” Then, during
Edionwe’s Phase II interview, Dr. Michael W. Lehker, Dean of the College of
Health Affairs at UTRGV, stated that “he believed there was an error with
EDIONWE’s transition from UTPA to UTRGV” and that he “should not have
had to interview for his position” but should have been automatically
“transitioned to UTRGV.” In the past, we have held that such statements by
university administrators are insufficient to create a property right: “the school
itself must enter into the agreement which gives rise to a protected interest.”
Staheli v. Univ. of Miss., 854 F.2d 121, 125 (5th Cir. 1988). Edionwe has failed
to allege any facts that suggest UTRGV itself, through the board of regents,
adopted a policy that guaranteed employment for all faculty from UTPA.
Accordingly, Edionwe had no constitutionally protected interest in
employment or tenure at UTRGV or the UT System at large. 1 Rather his
protected property interests were limited to an interest in continuing
appointment at the institution that granted him tenure, UTPA, an interest
which terminated when the university was abolished.
B. Procedural Due Process
While Edionwe’s interest in continuing employment at UTPA was
protected, it is clear that the procedure used by the state to terminate it
1 Edionwe points to a number of external documents and allegations outside the
pleadings to argue that he did have a constitutionally protected property interest in
employment at UTRGV, including: (1) “the hiring policy adopted by UT System Board of
Regents for tenured faculty members at UTPA”; (2) the “UTRGV FAQ Statement on hiring
tenured faculty members”; and (3) the fact that “UTRGV tenured and tenure-track faculty
were given credit for years of service at UTPA.” Because these allegations and documents
were not included in the complaint or incorporated by reference, it would be inappropriate
for us to consider them on appeal. A2D Techs. Inc. v. MJ Sys., Inc., 269 F. App’x 537, 541 (5th
Cir. 2008) (“[W]e typically may not consider materials or documents outside of the complaint
in addressing a motion to dismiss.”).
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satisfied due process. “[W]hen a legislature extinguishes a property interest
via legislation that affects a general class of people, the legislative process
provides all the process that is due.” McMurtray v. Holladay, 11 F.3d 499, 504
(5th Cir. 1993) (citing Bi-Metallic Inv. Co v. State Bd. of Equalization, 239 U.S.
441, 445-46 (1915); Logan v. Zimmerman Brush Co., 455 U.S. 441, 445-46
(1982)). Furthermore, the UTPA Handbook of Operating Procedures
specifically provided that even a tenured professor’s position could be
“terminated because of abandonment of academic programs.” That is exactly
what happened here. UTPA—along with its component dietetics program—
was abolished pursuant to a specific act of the Texas Legislature. The act
affected not just Edionwe’s property interest, but the property interests of “a
general class of people,” namely the faculties and staffs of UTPA and UTB.
C. Substantive Due Process
“Public officials violate substantive due process rights if they act
arbitrarily or capriciously.” Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,
562-63 (5th Cir. 2003). “To prove a substantive due process violation in this
context, an employee must show that a public employer’s decision ‘so lacked a
basis in fact’ that it could be said to have been made ‘without professional
judgment.’” Jones v. La. Bd. of Sup’rs of Univ. of La. Sys., 809 F.3d 231, 240
(5th Cir. 2015) (quoting Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998)).
“The bar is high because ‘a federal court is generally not the appropriate forum
in which to review the multitude of personnel decisions that are made daily by
public agencies.” Id. (quoting Honore v. Douglas, 883 F.2d 565, 569 (5th Cir.
1987)).
Edionwe’s property interest in continuing employment at UTPA was
terminated pursuant to an act of the legislature, not as a result of the actions
of Bailey and Rodriguez, arbitrary or otherwise. Edionwe’s assertion that the
“promulgation and application of arbitrary and capricious hiring criterion [sic]
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and an arbitrary deadline of application for transition resulted in Edionwe’s
termination of tenure,” is therefore irrelevant. Edionwe’s employment and
tenure at UTPA would have terminated by August 31, 2015 regardless of
whether he had been hired at UTRGV.
Having concluded that Edionwe failed to allege a constitutional
violation, we need not address whether Bailey and Rodriguez were entitled to
qualified immunity. 2
IV.
“Although the district court . . . did not explicitly deny the motion [for
leave to amend pleadings], the entry of its ‘FINAL JUDGMENT’ was an
implicit denial of any outstanding motions.” Tollett v. City of Kemah, 285 F.3d
357, 369 n.* (5th Cir. 2002). As such, Edionwe now contends that the “district
court erred when it denied [his] Motion for Leave to Amend Pleadings.” We
disagree.
While it is true that “[t]he court should freely give [a party] leave [to
amend its pleadings] when justice so requires,” Fed. R. Civ. P. 15(a)(2), such
leave is not required where, as here, the movant “contend[s] that his pleadings
sufficed to state a due process claim” throughout “his briefing in opposition to
the Rule 12(c) motion” and “fail[s] to apprise the district court of the facts that
he would plead in an amended complaint, if necessary, to cure any
deficiencies.” Gentilello v. Rege, 627 F.3d 540, 546 (5th Cir. 2010). Edionwe’s
motion to amend merely stated that “[i]f the Court is inclined to dismiss any
2We likewise decline to consider Edionwe’s claim for declaratory judgment, exercising
our “unique and substantial discretion in deciding whether to declare the rights of litigants”
under the federal Declaratory Judgment Act. Wilton v. Seven Falls Co., 515 U.S. 277, 286
(1995). Although Edionwe’s complaint seeks declaratory relief pursuant to the Texas
Declaratory Judgment Act, “the removal to federal court causes the claim to be viewed as
brought under the [federal] Declaratory Judgment Act.” i2 Techs. US, Inc. v. Lanell, No.
CIV.A.302CV0134G, 2002 WL 1461929, at *7 n.5 (N.D. Tex. July 2, 2002) (collecting cases).
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portion of Plaintiff’s complaint for failure to state a claim, Plaintiff requests
leave of court to amend his complaint to cure the alleged pleading deficiencies
identified by Defendants . . . .” As we have done in similar circumstances in the
past, we have “little difficulty affirming [the] district court’s denial of leave to
amend.” Id.
We likewise reject Edionwe’s argument that the district court abused its
discretion by denying his motion to alter or amend judgment. A Rule 59(e)
motion “calls into question the correctness of a judgment.” In re Transtexas Gas
Corp., 303 F.3d 571, 581 (5th Cir. 2002). It “serve[s] the narrow purpose of
allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.
2004) (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
As such, “[r]econsideration of a judgment after its entry is an extraordinary
remedy that should be used sparingly.” Id. (citing Clancy v. Emp’rs Health Ins.
Co., 101 F. Supp. 2d 463, 465 (E.D. La. 2000)). “[S]uch a motion is not the
proper vehicle for rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of judgment.” Id. (citing Simon v.
United States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
In his motion, Edionwe asserted three grounds for altering or amending
the judgment. First, he argued that “a manifest error of law was committed by
the trial court since Edionwe had a protected property interest [in employment
at UTRGV].” Because this was simply a “rehashing” of the legal theory and
argument raised and rejected prior to judgment, the district court did not abuse
its discretion in denying it. Id.
Second, Edionwe contended that “a manifest error of law was committed
by the trial court in not granting Edionwe leave to replead.” As mentioned
above, a bare bones motion to amend remains futile when it “fail[s] to apprise
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the district court of the facts that he would plead in an amended complaint.”
Gentilello, 627 F.3d at 546.
Third, Edionwe again sought to amend his pleading, this time attaching
a copy of his proposed, first amended complaint. This aspect of the district
court’s denial of Edionwe’s Rule 59(e) motion is properly governed by the Rule
15(a) standard. Jackson v. N.A.A.C.P., 575 F. App’x 256, 258 (5th Cir. 2014).
While denials of Rule 15(a) and Rule 59(e) motions are both ostensibly
reviewed for abuse of discretion, “the district court’s discretion is considerably
less under Rule 15(a).” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir.
2003). In fact, the Supreme Court has enumerated just “five considerations in
determining whether to deny leave to amend a complaint: ‘undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment, [and] futility of
the amendment.” Id. at 864 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Absent such factors, the leave sought should, as the rules require, be freely
given.” Id. (internal quotation marks omitted).
Edionwe’s proposed amended complaint included additional allegations
about the Phase I hiring plan, and incorporated by attachment two documents:
(1) the plan for “Hiring of Tenured and Tenure-Track Faculty Members to
[UTRGV]” as approved by the board of regents; and (2) an accompanying set of
answers to “Frequently Asked Questions” about said hiring plan. He also
alleged for the first time that because he “receiv[ed] no and/or inadequate
notice from Rodriguez and Bailey,” he was “unaware that UTRGV initiated
Phase I hiring and of the September 8, 2014, deadline to apply.”
Even accepting all of the allegations in the proposed amended complaint
as true, Edionwe still failed to allege that he had a constitutionally protected
property right to employment at UTRGV. Without a property interest, he could
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not allege a deprivation of either procedural or substantive due process, even
if Bailey and Rodriguez failed to provide him with adequate notice.
The hiring plan stated that “[t]he President of UTRGV [i.e. Bailey] shall
recommend that the Board of Regents grant tenure to” all applicants who, in
addition to satisfying six other requirements, held a “full-time, tenured faculty
appointment” at UTPA or UTB and “timely complete[d] and submit[ted] all
forms required by UTRGV to express the individual’s interest in and
qualifications for a tenured faculty appointment at UTRGV.” The Frequently
Asked Questions statement likewise enumerated the eight “hiring criteria for
Phase I,” which included the applicant “complet[ing] and submit[ting] the
required online application on time.” By his own admission, Edionwe did not
even “inquire[] about Phase I hiring” until October 7, 2014, a month after the
application deadline, and nearly two months after he returned to the United
States. As the Frequently Asked Questions explain, meeting “all but one”
requirement results in an applicant “not be[ing] eligible to be hired through
Phase I.”
Furthermore, the additional allegations make clear that even those
applicants who fulfilled all eight hiring criteria were still not entitled to
employment at UTRGV. The hiring plan states only that Bailey would
“recommend that the Board of Regents grant tenure,” not that it would
definitely be granted. Likewise, the Frequently Asked Questions stop short of
assuring eligible applicants of future employment:
If I meet all the requirements in Phase I and submit all the
required forms, how will I find out if I am getting a faculty position at
UTRGV?
UTRGV will contact you using the email address you provide in
your online expression of interest.
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Because such statements are insufficient to create a constitutionally protected
property interest, Edionwe’s proposed amended complaint is futile. The district
court did not abuse its discretion.
V.
For the forgoing reasons, we AFFIRM the district court’s decisions: (1)
granting the Defendants’ motion for judgment on the pleadings with respect to
Edionwe’s § 1983 claims; (2) denying by implication Edionwe’s motion for leave
to amend pleadings; and (3) denying Edionwe’s motion to alter or amend the
judgment. We also DECLINE to exercise jurisdiction over and DISMISS
Edionwe’s declaratory judgment claim.
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