Case: 20-40211 Document: 00516006223 Page: 1 Date Filed: 09/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 8, 2021
No. 20-40211
Lyle W. Cayce
Clerk
Patricia Hernandez Edelstein; Erin Hernandez Garcia;
Maria Linda Gonzalez; Sonia Herrera;
Aida Montanaro-Flores; Rebecca RuBane;
Elizabeth Valdez Garza,
Plaintiffs—Appellants,
versus
City of Brownsville,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 1:19-CV-42
Before Jones, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:*
Seven female attorneys sued the City of Brownsville under 42 U.S.C.
§ 1983. They claimed that the City had violated the Due Process Clause of
the Fourteenth Amendment by failing to publicize three openings for the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
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position of Municipal Judge. They also contended that the City had violated
the Equal Protection Clause by engaging in sex discrimination during the hir-
ing process for those positions. The district court dismissed Plaintiffs’ com-
plaint for failure to state a claim and denied their motion to amend it. We
affirm.
I.
Brownsville is the seat of Cameron County, Texas. Its government
consists of a City Commission comprising a Mayor and six Commissioners.
See Brownsville, Tex., Code of Ordinances (“Brownsville
Code”) pt. I, art. V, § 1 (2021), https://library.municode.com/tx/-
brownsville/codes/code_of_ordinances. Those officials appoint a City
Manager to be “the chief executive officer and head of the administrative
branch of the city government.” Id. pt. I, art. V, § 20. In return, the Manager
is “responsible to the city commission for the proper administration of all
affairs of the city in his charge.” Id. One of his powers is control over
appointments. The City’s charter vests him with the authority to hire and
fire all its officers and employees, save only those positions for which it makes
a specific exception. Id.; see also id. (specifying that the Commission, not the
Manager, appoints the city attorney). Importantly, the charter also prohibits
the Commission or its members from “in any manner dictat[ing] the appoint-
ment or removal” of the officers and employees that the Manager is empow-
ered to hire and fire. Id. By ordinance, the City’s leaders have confirmed
that Municipal Judgeships are one such position. See id. subpt. A, ch. 66,
§ 66–6(a).
Plaintiffs are seven female attorneys who reside in Cameron County,
Texas. All hoped to become Municipal Judges for the City and had asked it
to notify them when vacancies for that position arose. Although there were
three such openings in August 2018, the City did not post them online or
2
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notify the Plaintiffs about them. Two months later, Plaintiffs discovered that
the vacancies had been filled with three men. According to Plaintiffs, the
Commissioners did not want women to be hired as Municipal Judges and had
instructed the Manager to consider only men for the openings.
In response, Plaintiffs brought two claims against the City.1 First, they
alleged that the City had violated the Due Process Clause of the Fourteenth
Amendment and 42 U.S.C. § 1983 by infringing their substantive interest in
“furthering [their] careers in the legal field.” Second, they alleged that the
City had violated the Equal Protection Clause and 42 U.S.C. §§ 1983 and
1988 by engaging in sex discrimination during the Municipal Judge hiring
process.
The City then moved to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. The district court
granted its motion. On the substantive Due Process claim, it held that
“Plaintiffs’ allegations amount to asserting a liberty interest to be considered
for a specific job opportunity” and that no such right existed. On the Equal
Protection claim, it held that Plaintiffs had failed to state a claim for municipal
liability because they did not allege that the City’s final policymaker for
Municipal Judge hiring—the Manager—intended to discriminate against
them. Even so, it observed that their allegations “resemble the ‘cat’s paw’
or ‘rubber stamp’ legal theory that the Fifth Circuit has recognized in Title
VII claims.” It then encouraged Plaintiffs to move to amend their complaint
to pursue that theory if they believed it applied to Section 1983 claims.
Subsequently, Plaintiffs moved to amend their complaint. As the dis-
1
Initially, Plaintiffs also brought a claim under 42 U.S.C. § 1985 for conspiracy to
interfere with civil rights, but they voluntarily withdrew it in response to the City’s motion
to dismiss.
3
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trict court had suggested, their proposed amended complaint advanced a
cat’s paw theory of liability. It also included additional details supporting
their allegations of sex discrimination by the Commissioners. The district
court, however, denied their motion as futile. First, it observed that Plaintiffs
“offer[ed] no argument in their Motion to support the application of the cat’s
paw theory of liability to their causes of action.” It also noted that this court
had not previously applied that theory in the context of Section 1983.
Accordingly, it declined to employ the theory in this case. Second, the dis-
trict court held that Plaintiffs’ additional allegations “d[id] not cure the legal
deficiencies in Plaintiffs’ claims that led the Court to find those causes of
action untenable and subject to dismissal.” Plaintiffs appealed.
II.
We review de novo the district court’s dismissal of Plaintiffs’ com-
plaint under Rule 12(b)(6). White v. U.S. Corr., L.L.C., 996 F.3d 302, 306
(5th Cir. 2021). To overcome a Rule 12(b)(6) motion, “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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). During our
review, we “accept all well-pled facts as true” and “constru[e] all reasonable
inferences in the complaint in the light most favorable to the plaintiff.”
White, 996 F.3d at 306–07. Even so, “we do not accept as true conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Id. at 307
(quoting Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020)).
We also review de novo the denial of Plaintiffs’ motion to amend their
complaint on the grounds of futility. Villarreal v. Wells Fargo Bank, N.A.,
814 F.3d 763, 766 (5th Cir. 2016). Such a motion is futile when “the amended
complaint would [still] fail to state a claim upon which relief could be
granted.” Id. Accordingly, we “treat the denial of a motion to amend on
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such basis as we treat a dismissal under Federal Rule of Civil Procedure
12(b)(6).” Id.
III.
A.
The district court properly dismissed Plaintiffs’ substantive Due
Process claim. They allege that the City infringed their substantive life and
liberty interests in furthering their legal careers by denying them a “proper
hiring process” for the Municipal Judge positions. The district court held
that the Fourteenth Amendment “does not encompass such an expansive
liberty interest.” We agree. That Amendment protects the right to “choose
one’s field of private employment . . . subject to reasonable government reg-
ulation.” Conn v. Gabbert, 526 U.S. 286, 291–92 (1999). Plaintiffs, however,
do not allege they have been excluded from the legal profession. Instead, in
the district court’s words, their “allegations amount to asserting a liberty
interest to be considered for a specific job opportunity.” We have previously
held that the Due Process Clause does not protect the mere “expectation”
of an opportunity to pursue a certain profession. Neuwirth v. La. State Bd. of
Dentistry, 845 F.2d 553, 557 (5th Cir. 1988). As Plaintiffs’ asserted interest
is even more sweeping, we affirm the dismissal of their claim.2
B.
Likewise, the district court correctly dismissed Plaintiffs’ equal pro-
tection claim. They allege that the Commissioners violated their rights under
the Equal Protection Clause by forbidding the Manager from hiring women
as Municipal Judges. On appeal, they argue we can impute this discrimina-
tion—and therefore liability—to the City under Section 1983 because the
2
Because Plaintiffs have no such interest, their failure-to-train and failure-to-
supervise claims based on this theory were also properly dismissed.
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Commissioners are the relevant policymakers for hiring Municipal Judges.
The district court, however, treated the Manager as the relevant policy-
maker. Because Plaintiffs did not allege that the Manager intended to dis-
criminate against them, it held they had not stated a claim for municipal
liability. We agree.
For their equal protection claim to survive at this stage, Plaintiffs
“must allege and prove that [they] received treatment different from that
received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.” Priester v. Lowndes Cnty., 354 F.3d
414, 424 (5th Cir. 2004) (quoting Taylor v. Johnson, 257 F.3d 470, 473 (5th
Cir. 2001) (per curiam)). But since they seek to hold a municipality instead
of an individual liable for a constitutional violation, Plaintiffs face an addi-
tional requirement. They must also plead that their injury “was caused by
an existing, unconstitutional municipal policy, which . . . can be attributed to a
municipal policymaker.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–
24 (1985) (plurality opinion) (emphasis added).
To determine whether an official is the relevant “policymaker,” we
must ascertain whether he “possesses final authority to establish municipal
authority with respect to the action ordered.” Beattie v. Madison Cnty. Sch. Dist.,
254 F.3d 595, 602 (5th Cir. 2001) (emphasis added) (quoting Brady v. Fort
Bend Cnty., 145 F.3d 691, 698 (5th Cir. 1998)). That’s a “question of state
law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (plurality opin-
ion). And “a federal court would not be justified in assuming that municipal
policymaking authority lies somewhere other than where the applicable law
purports to put it.” Id. at 126. As a result, the critical issue for this claim is
whether the City’s law vests final authority to hire Municipal Judges in the
Commissioners or the Manager. If the latter, Plaintiffs’ claim was properly
dismissed.
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Here, the City’s charter is unambiguous: The final policymaker for
hiring Municipal Judges is the Manager—not the Commissioners. The char-
ter explicitly vests the Manager with “the power to appoint and remove all
officers and employees in the administrative service of the city” unless it pro-
vides otherwise. Brownsville Code pt. I, art. V, § 20. Where the char-
ter makes an exception and vests appointments power in the Commissioners,
it is explicit. See, e.g., id. (noting that the “city attorney . . . shall be appointed
and removed by the city commission”). The absence of an exception for
Municipal Judges is thus strong evidence that the power to appoint them
remains with the Manager. See Antonin Scalia & Bryan A. Gar-
ner, Reading Law: The Interpretation of Legal Texts 107
(2012) (“The expression of one thing implies the exclusion of the others.”).
This reading of the charter is confirmed by an ordinance that states the Man-
ager, not the Commissioner, controls the hiring of Municipal Judges.
Brownsville Code subpt. A, ch. 66, § 66–6(a).
The City’s charter also makes clear that the Commissioners do not
enjoy the power to review the Manager’s hiring decisions. It explicitly for-
bids them from “dictat[ing] the appointment or removal of any city adminis-
trative officers or employees whom the city manager or any of his subordi-
nates are empowered to appoint.” Id. pt. I, art. V, § 20. Thus, although the
Commissioners may “fully and freely discuss” their views on hiring with the
Manager, they lack the power to overrule his decisions. Id. A policymaker is
often the person whose authority on an issue is “unreviewable by any other
body.” Beattie, 254 F.3d at 603. The law that governs this case therefore
places final policymaking authority for hiring Municipal Judges in the Mana-
ger, not the Commissioners.
Plaintiffs offer two theories why the final policymakers are the City
Commissioners instead. Both have been foreclosed by our precedents.
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First, Plaintiffs appear to argue that the Commissioners’ general over-
sight over the Manager makes them the final policymakers on hiring. It is
true that the Manager is “responsible to the city commission for the proper
administration of all affairs of the city in his charge.” Brownsville
Code pt. I, art. V, § 20. We have previously held, however, that “[t]he mere
existence of oversight . . . is not enough” to make an official a final policy-
maker. Beattie, 254 F.3d at 603. Instead, that official’s oversight must relate
to “the precise action” at issue in the litigation. Id. Here, because the Com-
missioners are forbidden from “dictat[ing] the appointment” of Municipal
Judges “in any manner,” they cannot overturn the precise action of the Man-
ager’s hiring decisions. Brownsville Code pt. I, art. V, § 20. Their
general authority over the Manager thus does not make them policymakers
vis-à-vis those hiring decisions. Plaintiffs’ oversight theory fails.
Second, Plaintiffs appear to argue that the Commissioners are the final
policymakers here because the Manager complied with their instructions to
hire only men. But according to our caselaw, it is the formal allocation of
power—not the way power is exercised “in practice”—that matters for
municipal liability under Section 1983. Advanced Tech. Bldg. Sols., L.L.C. v.
City of Jackson, 817 F.3d 163, 168 (5th Cir. 2016); see also Barrow v. Greenville
Indep. Sch. Dist., 480 F.3d 377, 381 n.14 (5th Cir. 2007) (“[T]he question is
whether [the supervisory entity] had the authority to guide [the subordi-
nate’s] discretion, not whether it actually did so.”). Analyzing the issue any
differently would disregard the Supreme Court’s instructions to “respect the
decisions, embodied in state and local law, that allocate policymaking author-
ity among particular individuals and bodies.” Praprotnik, 485 U.S. at 131. It
would also permit municipalities to be held liable under Section 1983 on what
would operate in practice as a respondeat superior theory—something the
Supreme Court has repeatedly forbidden. See, e.g., id. at 126. Hence, both
the Supreme Court and our court “have explicitly rejected the concept of de
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facto authority” like the one advanced in this case. Advanced Tech., 817 F.3d
at 168; Praprotnik, 485 U.S. at 131. That means that the City’s final policy-
maker is still the Manager, even if the Commissioners exercised “personal
sway” over him. Advanced Tech., 817 F.3d at 168. Plaintiffs’ command the-
ory thus fails, and the district court therefore properly dismissed their Equal
Protection claim.3
IV.
Finally, the district court correctly denied Plaintiffs’ motion to amend
their complaint. It concluded that permitting them to do so would be futile.
We agree.
The district court correctly held that Plaintiffs’ additional factual alle-
gations would not help them state a claim on any of their earlier theories. In
their proposed amended complaint, Plaintiffs claim several times that the
Manager intended to discriminate against them in the Municipal Judge hiring
process.4 But the first two of these allegations are conclusory. And common
sense leads us to discredit the third, for Plaintiffs themselves admit that mul-
3
Plaintiffs failed to argue that the Commissioners threatened to fire the Manager
unless he complied with their instructions. Therefore, we do not address whether non-
policymakers’ discriminatory intent could be imputed to a municipality if they exercised
coercion over a final policymaker.
4
See ROA.151 (“Both the CITY and City Manager purposely discriminated against
women . . . .”); ROA.151 (“[T]he City Manager would never recommend the hiring of a
female . . . .”); ROA.151–52 (“Discriminatory intent by the City Manager . . . is clear, in
that no female, with the exception of one, has held one of these positions in over thirty
years.”). Plaintiffs appear to argue something similar in their reply brief, at 5 (“When the
City Manager’s job is to . . . properly see that the enforcement of the personnel policy is
adhered to [sic] how can one plausibly conclude he does not possess discriminatory intent
based upon his overt actions and inactions[?]”). Insofar as it is different from their allega-
tions in their proposed amended complaint, however, “we ordinarily disregard arguments
raised for the first time in a reply brief.” Sahara Health Care, Inc. v. Azar, 975 F.3d 523,
528 n.5 (5th Cir. 2020).
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tiple people have served as Manager over the past thirty years. The core of
their allegations is still that the Commissioners directed the Manager to hire
three men and that he subsequently carried out those instructions. Those
allegations are as consistent with the theory that the Manager is an unwitting
participant as they are with the theory that he possessed discriminatory
intent. This means their complaint “stops short of the line between possibil-
ity and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). The district court therefore correctly denied
Plaintiffs’ motion to amend their complaint.
AFFIRMED.
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Jennifer Walker Elrod, Circuit Judge, dissenting in part and
concurring in part:1
Because I believe that allowing plaintiffs’ proposed amended
complaint would not be futile, I dissent in part. Specifically, the proposed
amended complaint states a plausible claim under the Equal Protection
Clause by alleging that a municipal policymaker, the City Manager,
intentionally discriminated against plaintiffs on the basis of their sex and that
plaintiffs suffered unequal treatment as a result. See Priester v. Lowndes Cnty.,
354 F.3d 414, 424 (5th Cir. 2004); City of Oklahoma City v. Tuttle, 471 U.S.
808, 823–24 (1985) (plurality opinion).
The majority opinion correctly concludes that the policymaker for the
hiring of Municipal Judges is the City Manager and that plaintiffs plausibly
pleaded unequal treatment. But the majority opinion errs by determining
that plaintiffs failed to plead discriminatory intent. In their proposed
amended complaint, plaintiffs allege that “the City Manager purposely
discriminated against women . . . .” and that “the City Manager would never
recommend the hiring of a female . . . .” Plaintiffs also alleged that the City
Manager never responded to their inquiries about the Municipal Judge
positions and never considered hiring anyone other than the three men that
were selected. Plaintiffs also allege that discriminatory intent is “clear” in
that only one woman has been selected as a Municipal Judge in “over thirty
1
I agree with the majority opinion’s rejection of plaintiffs’ substantive due process
claim. I also agree with the district court’s rejection of plaintiffs’ cat’s paw argument.
Under the cat’s paw theory of liability, “a subordinate employee’s discriminatory remarks
regarding a co-worker can be attributed to the workplace superior, ultimately the one in
charge of making employment decisions, when it is shown that the subordinate influenced
the superior’s decision or thought process.” Haire v. Bd. of Supervisors of La. State Univ.
Agric. & Mech. Coll., 719 F.3d 356, 366 n.11 (5th Cir. 2013). That theory of liability is
inapplicable here because plaintiffs did not plead that the City Manager influences the
hiring decisions of the Commissioners. If anything, they attempted to plead the opposite.
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years.” Discriminatory intent “implies that the decisionmaker . . . selected
or reaffirmed a particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers.
Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Discriminatory intent is
simply intent to discriminate. In determining whether discriminatory intent
is present in a given case, we conduct a “practical” inquiry examining
“objective factors” to surmise “the give and take of the situation.” Id. at 279
n.24 (quoting Cramer v. United States, 325 U.S. 1, 33 (1945)).
Conducting the practical inquiry here and viewing the complaint as a
whole, plaintiffs’ proposed amended complaint states a viable claim of sex
discrimination under the Equal Protection Clause. I respectfully dissent.
12