Copsey v. Swearingen

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-3233
__________________

KERRY COPSEY and CINDY COPSEY,

Plaintiffs-Appellants,

versus

JERRY SWEARINGEN, Individually and
as the Director of Blind Services,
ET AL.,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the
Middle District of Louisiana
______________________________________________
(October 25, 1994)

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and SCHWARTZ,*
District Judge.

GARWOOD, Circuit Judge:

Plaintiff-appellant Kerry Copsey (Copsey) operated a vending

facility in the Louisiana state capitol building.1 Copsey, who is

blind, received his license through a program operated by the

Louisiana Division of Blind Services, which gives preferential

*
Senior District Judge of the Eastern District of Louisiana,
sitting by designation.
1
After oral argument of this appeal, Kerry Copsey died and
his widow, Cindy Copsey, in her capacity as administratrix of
Kerry Copsey's estate, has been substituted in his stead as an
appellant pursuant to FED. R. APP. P. 43(a).
treatment to blind persons who desire to operate concession stands

in public buildings. Copsey became convinced that state officials

were permitting an organization to operate a concession stand in

another part of the capitol building in violation of his exclusive

vending rights. After Copsey publicly aired his grievances about

the program, his license was terminated. Although he was

eventually reinstated and compensated for his loss, Copsey sued

numerous defendants, alleging among other things that the violation

of his exclusive vending rights deprived him of property without

due process of law and that the revocation of his license was in

retaliation for the exercise of his First Amendment rights. The

trial court eventually denied all of Copsey's claims and Copsey now

appeals. We affirm in part, reverse in part, and remand.

Facts and Proceedings Below

Copsey and his wife Cindy Copsey instituted this action on

September 9, 1988. The named defendants in the suit were (1) Jerry

Swearingen, the director of the Division of Blind Services at all

times material to this case; (2) Guy Dicharry, the manager of the

blind vendor program in the capitol;2 (3) Phillip Reichert, an

assistant director of the Division of Blind Services; (4) John A.

Alario, Jr., the Speaker of the Louisiana House of Representatives;

(5) Samuel B. Nunez, Jr., the President of the Louisiana Senate;

(6) Sylvia Duke, a member of the Senate staff; (7) Barbara Goodson,

a member of the House of Representatives staff; (8) Charles

2
Mr. Dicharry died prior to the judgment below and is no
longer a party inasmuch as no one has been substituted as a
defendant for him.

2
Schwing, the state capitol architect; (9) Mitchell "Homer"

Stockman, a management analyst for the Division of Blind Services;

and (10) the Foundation for Historical Louisiana, a private, non-

profit organization. Copsey sought declaratory and injunctive

relief as well as money damages.3

The facts leading up to Copsey's suit are as follows.

Louisiana permits blind vendors to operate concession stands in

public buildings pursuant to Louisiana Revised Statute § 46:333.4

The program is administered by Louisiana's Division of Blind

Services (the Division) of the Department of Health and Human

3
Copsey's claims for injunctive and declaratory relief have
been mooted by his death (see note 1, supra). On remand the
district court shall dismiss these claims as moot. Copsey's
vendor's license, by its express terms, automatically wholly
terminated on his death. The parties are in agreement that
Copsey's damages claims survived his death and pass to his
estate.
4
That law provides in pertinent part:

"A. State agencies, boards, commissions, and
institutions owning, maintaining, or controlling state
property shall in all cases give preference to blind
persons . . . in the operation of vending stands,
vending machines, and other small business concessions
to be operated on the premises. No other vending
stands, vending machines, or small business concessions
shall be operated on the same premises with vending
stands, vending machines, or other small business
concessions operated, or contemplated, under the
provisions of this Section. No blind person under this
Subpart shall be required to pay any fee, service
charge, or equivalent thereof upon the operation of a
vending stand, vending machines, and other small
business concessions in public buildings or premises,
nor shall the blind person be disturbed in the security
of the operation of the vending stand, vending machine,
and other small business concession in any way, without
reasonable or just cause." LA. REV. STAT. ANN. § 46:333
(West 1982).

3
Resources,5 which issues licenses to program participants. Prior

to 1985, a vending facility was run by a blind person (not Copsey)

on the 27th floor of the observation tower of the capitol building

in Baton Rouge. When renovations to the capitol were commenced in

the mid-1980's, however, the observation tower was closed. In July

1985, the Division entered into an agreement with the Legislative

Budgetary Control Council (the Council), which manages the

allocation of space in the capitol, to allow a blind vendor to

operate a concessions area in the breezeway basement of the capitol

building. At that time, however, no one was issued a license to

operate the basement concession. In May 1986, the Council signed

a lease with the Foundation for Historical Louisiana, Inc. (the

Foundation), a private non-profit organization, to operate a museum

shop in the observation tower.

In February 1987, the Division issued Copsey a license to

operate the concession stand in the basement of the capitol under

the terms of the 1985 agreement between the Division and the

Council. Copsey was the first vendor to receive a license to

operate in the capitol basement and at no time had he operated a

concession stand in the tower. At some point, Copsey became

unhappy with the administration of the program and made many

complaints to Swearingen. In Copsey's view, Louisiana Revised

Statute § 46:333 gave him the exclusive right to operate

concessions in the capitol building, including the observation

tower. Copsey made numerous demands upon the Division, including

5
Now known as the Department of Social Services/Division of
Rehabilitation Services.

4
that he be allowed to operate his vending facility stand in the

space being occupied in the observation tower by the Foundation.

In late May or early June 1987, Copsey distributed to the news

media a long letter addressed to the President of the National

Federation of the Blind which was critical of the Division's

administration of the blind vendor program. He also aired his

grievances on a local television broadcast.

In mid-June 1987, Swearingen sent Copsey a memo informing him

that Copsey's wife would no longer be allowed to visit the

concession stand during business hours. The directive was promptly

withdrawn but the bad blood between Copsey and Swearingen remained.

On September 9, 1987, a meeting, initiated by Swearingen, was held

between the two men. At the meeting, Swearingen offered to give

Copsey another vending location in a different government building.

Copsey agreed to consider changing locations and went to examine

the suggested alternate site with Dicharry. After talking with the

vendor operating that concession, Copsey informed Dicharry that he

would not be willing to go to the new location. Copsey also

communicated this to Swearingen, who said that he had no

alternative but to terminate Copsey. On September 10, 1987,

Dicharry and Reichert delivered Copsey a letter from Swearingen

informing Copsey that his position at the state capitol vending

facility and his participation in the blind vendor program would be

terminated at the close of business that very day. At Copsey's

request, Swearingen composed a second letter, also dated September

10, 1987, which set forth the reasons for Copsey's termination.

The letter cited five reasons for Copsey's termination:

5
 "1. Publicity adverse to the program on Baton Rouge
Channel 2 and in letters to the National Federation of
the Blind, both stimulated by you.

2. Continued reports from individuals, primarily
building management, as to your complaints about the
facility and the Capitol.

3. Concerns voiced by several other operators over the
negative impact on the program of your accusations
adverse to the agency and the program and other
information released by you to the press.

4. Contacts directly with specific Senators and
Representatives regarding various areas of your
dissatisfaction.

5. Contacts with suppliers and others after policy
violations were specifically brought to your attention."

The letter also stated in conclusion:

"The above actions on your part were perceived as having
an adverse effect on the program through creating the
potential of loss of this location and other aspects of
the total program."

Copsey appealed his termination, and a hearing before an

administrative law judge (ALJ) was scheduled for February 10, 1988.

One day prior to the hearing, on February 9, Swearingen delivered

a letter to Copsey which vacated the September 10 termination. The

letter indicated that Copsey would be placed on probation and would

be considered for future statewide vending facility openings as

they occur. The next day, Copsey and the Division stipulated to

the following: that Copsey would be reinstated into the blind

vendor program retroactive to September 10, 1987; that he would be

compensated at a rate of $720 per month from September 10, 1987,

for the time that he was removed from the vending stand; that he

would receive $500 in attorney's fees; that certain documents

inserted into his file by the Division would be removed; and that

6
he would be placed on probation until February 24, 1988, at which

time a hearing would be held to determine whether Copsey should be

reinstated at the capitol basement vending facility. The ALJ

adopted these stipulations as his decision. On February 24, 1988,

the hearing on Copsey's probation was held. The ALJ concluded that

the Division had not established cause for placing Copsey on

probation and entered findings to that effect. Copsey resumed

operation of the basement concession stand where he remained until

his death following the district court's judgment.

The instant lawsuit was filed September 9, 1988, and was

referred to a magistrate judge and, upon his recommendation, the

district court on August 4, 1989, dismissed a number of Copsey's

claims. On April 23, 1991, the district court granted the

defendants' motion for summary judgment as to all of Copsey's

claims except for the claim that Swearingen revoked Copsey's

license in retaliation for the exercise of his First Amendment

rights. See Copsey v. Swearingen, 762 F.Supp. 1250 (M.D. La. 1991)

("Copsey I"). A jury trial was commenced on Copsey's speech claim

against Swearingen but, at the close of plaintiff's case, the

district court on March 5, 1992, granted Swearingen's motion for a

directed verdict. See Copsey v. Swearingen, 790 F.Supp. 118 (M.D.

La. 1992) ("Copsey II"). Copsey now appeals from these three

rulings.6

6
The notice of appeal was filed both by Copsey and his wife,
Cindy. Based upon the Copseys' complaint, it appears that
Cindy's only claim was that she was denied her right to free
association when, in June 1987, the Copseys were told that Cindy
would not be allowed to visit her husband's stand during working
hours. The magistrate held that this claim was prescribed by

7
 Discussion

Copsey argues that the district court erred in dismissing his

claims under the First and Fourteenth Amendments and his conspiracy

claim. He also complains of the court's denial of his request for

declaratory and injunctive relief, his motion to join an additional

party, and his motion for reconsideration of the court's April 23,

1991, ruling. As noted (note 3, supra), the claims for declaratory

and injunctive relief are moot. Otherwise, we affirm the district

court on all counts with the exception of its decision to grant

Swearingen a directed verdict on Copsey's First Amendment claim.

I. Copsey's Property ClaimSQExclusive Right.

Copsey argues that he has been unconstitutionally deprived of

property without due process of law. See U.S. Const., amend. XIV,

§ 1. In his view, Louisiana Revised Statute § 46:333 gives him the

exclusive right to operate concession stands in the state capitol

building, and the Foundation's occupation of the tower violates

this right. Copsey names the Foundation, Alario, Nunez, Duke,

Goodson, and Schwing as the parties responsible for this alleged

trespass. The district court ruled that all defendants were

entitled to qualified immunity on this claim. Copsey I, 762

F.Supp. at 1258-59.

There is no doubt that property rights created under state law

are protected by the Fourteenth Amendment. See, e.g., Board of

virtue of the fact that the relevant events took place more than
a year before suit was filed in September 1988. Because the
Copseys make no argument on appeal that this ruling was
incorrect, it must stand. Thus, Kerry Copsey (now Cindy Copsey
in her capacity as administratrix of Kerry Copsey's estate) is
the only plaintiff with remaining claims in this case.

8
Regents v. Roth, 92 S.Ct. 2701 (1972). A careful parsing of

Copsey's claim, however, belies the view that he has been deprived

of any property right which state law has granted him. First,

Copsey cannot complain that the May 1986 agreement between the

legislature and the Foundation authorizing the Foundation to set up

shop in the tower deprived him of any property. Copsey was not

issued his license to operate in the capitol basement until

February 1987 and thus could have no rights with respect to the

capitol until at least that time. Moreover, because Copsey did not

file suit until September 1988, any claim he might have for events

occurring before September 1987 would be barred by the one-year

statute of limitations applicable to his claims. Second, Copsey

cannot claim that he is entitled to occupy the tower himself. The

contract between the Legislature and the Division of Blind Services

to allow a blind vendor to operate in that part of the capitol

designated the basement, and the basement only, as the location to

be used. Likewise, Copsey's license permits him to operate in the

basement of the capitol, not the tower. That a blind vendor once

occupied the tower is of no moment. Lastly, section 333, however

one interprets it, cannot be construed to mean that a blind vendor

is entitled to select the vending location of his choosing, and

Copsey does not contend otherwise.

At the most, then, Copsey is left with the argument that

section 333 gives him the right to be the exclusive vendor in the

entire capitol, and therefore that the competition provided by the

Foundation's shop deprived him of property. Section 333 arguably

gives Copsey that rightSQbut only arguably. It provides that

9
"State agencies, boards, commissions, and institutions owning,

maintaining, or controlling state property shall in all cases give

preference to blind persons . . . in the operation of vending

stands" and that "No other vending stands . . . shall be operated

on the same premises." The defendants counter that the strictures

of section 333 do not apply to the state capitol building. While

conceding that the capitol building is state property, the

defendants question whether the legislature (which presumably owns,

maintains, or controls the capitol) is a state agency, board,

commission, or institution. They bolster their argument with

Louisiana Revised Statute § 49:150.1, which provides:

"A. Notwithstanding any other provision of law to the
contrary, and particularly any contrary provision of R.S.
49:146, the allocation and use of space within the state
capitol, pentagon courts buildings, and the Old Arsenal
Museum shall be as provided in this Subpart. The
provisions of this Subpart shall apply to the
subbasement, basement, and all floors of the state
capitol, all buildings in the pentagon courts, and the
Old Arsenal Museum.

. . . .

E. (1) All areas of the state capitol, pentagon courts
buildings, and Old Arsenal Museum not allocated under the
provisions of Subsections B and C herein shall be for the
sole use of the legislature, its agencies and officers,
and the employees of the legislature and its agencies."
LA. REV. STAT. ANN. § 49:150.1 (West. Supp. 1993).

The defendants argue that section 150.1, which antedates

section 333, gives the legislature complete control over space

within the capitol building notwithstanding any other provision of

law.7 So far as we know, the Louisiana courts have not attempted to

7
The district court, seeming to agree with the defendants'
construction of section 150.1, expressed the view:

10
reconcile section 333 with section 150.1. We note, however, that

a Louisiana appellate court recently denied Copsey's request for a

writ of mandamus on his claim that the Foundation's lease violates

section 333. See Copsey v. Joint Legislative Budget Control

Council, 607 So.2d 841 (La. App. 1st Cir. 1992). At the end of the

day, the most we can say is that it is unclear whether section 333

confers upon Copsey a property interest protectable by the

Fourteenth Amendment. Therefore, we agree with the district court

that the defendants were entitled to qualified immunity. A state

official cannot be held liable for depriving a plaintiff of a

property right unless that right was clearly established at the

time of the deprivation. See Hopkins v. Stice, 916 F.2d 1029, 1031

(1990). Copsey's view of section 333, as we have said, is an

arguable one; he cannot seriously maintain, however, that his view

is clearly established as the law in this Court or any other. Id.

Even if one assumes arguendo that Copsey does have a state

property right by virtue of section 333, he has not shown that he

has been deprived of it without due process of law. When a

plaintiff alleges that he has been deprived of property because of

the random and unauthorized acts of government officials and seeks

a post-deprivation remedy, there is no denial of due process if the

state provides adequate post-deprivation remedies. See Parratt v.

Taylor, 101 S.Ct. 1908 (1981); Hudson v. Palmer, 104 S.Ct. 3194

"The phrase, 'Notwithstanding any other provision
of law to the contrary' serves as a powerful indication
that the Legislature intended to keep complete control
of all space in the capitol in its own hands, even if
other laws were to the contrary." Copsey I, 762
F.Supp. at 1258.

11
(1984); Caine v. Hardy, 943 F.2d 1406 (5th Cir. 1991) (en banc).

Copsey's claim falls squarely within this rule. First, the

deprivation of which Copsey complains was a random and unauthorized

act, which he alleges was in violation of state law. Second, it is

clear that what Copsey seeks is a post-deprivation remedy. Indeed,

it can only be that. It cannot be said that Copsey was deprived of

property prior to the time that he obtained his license, and once

he did so, the deprivation had already occurred, for the Foundation

was already in the capitol. Therefore, there is no way that Copsey

could have been granted a predeprivation remedy in this instance.

Third, Copsey has not demonstrated that Louisiana state law affords

an inadequate remedy. In fact, the Louisiana appellate court that

denied his request for mandamus reasoned that Copsey had not

"proved his entitlement to this extraordinary remedy" because he

"also sued under ordinary process, asking for injunctive relief as

well as a declaratory judgment. Therefore, other remedies would

appear to be available at law to plaintiff." Copsey v. Joint

Legislative Budgetary Control Council, 607 So.2d 841, 843 (La. App.

1 Cir. 1992). In essence, Copsey complains that some of the

defendants have violated state law, i.e., section 333. In the

absence of evidence to the contrary, we must presume that

Louisiana's court system is capable of redressing violations of

state law. Cf. Marshall v. Norwood, 741 F.2d 761, 763 (5th Cir.

1984) ("This Court has found that Louisiana law provides an

adequate remedy for negligent action.").

12
II. Copsey's Procedural Due Process ClaimSQLicense Termination.

Copsey argues that the termination of his license was without

due process and therefore in violation of the Fourteenth Amendment.

The district court ruled that the hearing held on February 10,

1988, satisfied Copsey's right to procedural due process. See

Copsey I, 762 F.Supp. at 1260-61. We agree. Copsey does not

allege that the post-deprivation procedure used in this case itself

violated due process. Nor is there any doubt that an adequate

post-deprivation hearing can satisfy due process in this context,

as noted above. See Parratt v. Taylor, 101 S.Ct. at 1915.

Copsey's only complaint appears to be about the outcome of the

hearing. One day prior to the hearing, Copsey and the Division of

Blind Services entered into an agreement that Copsey would be

reinstated into the blind vendor program, that he would be

compensated $720 a month for the time that he was out of his

location, that he would receive $500 in attorney's fees, that

certain documents placed in his file would be removed, and that he

would be placed on probation. The ALJ adopted these stipulations

as his decision. Two weeks later, Copsey's probationary status was

ended. We believe that Copsey was afforded due process. We are

unsympathetic to the claim that it was improper for the ALJ to

adopt as a remedy that to which Copsey had freely agreed. What is

more, since Copsey was returned to his concession stand in the

capitol basement, with agreed compensation for the intervening

period and attorney's fees, he was in the same position that he had

been in prior to the termination of his license. See also Robinson

13
v. Boyer, 825 F.2d 64, 67 (5th Cir. 1987).

III. Copsey's First Amendment Claim.

Copsey argues that the termination of his license in September

1987 was in retaliation for the exercise of his First Amendment

right to free speech. There is really no dispute that Copsey's

license was terminated, at least in part, because of his speech.

The defendant's brief concedes that "Copsey was removed from the

vending facility located in the breezeway of the Louisiana State

Capitol Building for the reasons stated in the two letters" of

September 10 from Swearingen. The second letter, which was drafted

by Swearingen for the express purpose of setting forth the reasons

for the termination of Copsey's license, cited Copsey's appearance

on local television, his letter to the National Federation of the

Blind, and his communications with Louisiana state senators and

representatives. There can be no doubt that these are First

Amendment activities. That Copsey was punished for speaking,

however, does not necessarily prove that his First Amendment rights

were violated. Analogizing Copsey's status as a license-holder to

that of a public employee, the district court analyzed Copsey's

claim under the two-prong test announced in Pickering v. Board of

Education, 88 S.Ct. 1731 (1968), and Connick v. Myers, 103 S.Ct.

1684 (1983); see Copsey II, 790 F. Supp. at 120-23. Under

Pickering and Connick, when the state penalizes a public employee

for speaking, no First Amendment violation occurs unless the speech

is "fairly characterized as constituting speech on a matter of

public concern," Connick, 103 S.Ct. at 1690, and the employee's

interest in speaking outweighs "the interest of the State, as an

14
employer, in promoting the efficiency of the public services it

performs through its employees." Pickering, 88 S.Ct. at 1734-35.

In the district court's view, Copsey had failed to meet the

threshold testSQthat the speech be on a matter of public

concernSQand therefore suffered no violation of his First Amendment

rights. Copsey II, 790 F.Supp. at 122-23. The court also held

that Swearingen was entitled to qualified immunity. See id. at

123.

Copsey argues that, because he is not employed by the state,

the Pickering/Connick test is misplaced here and his claim should

instead be evaluated under a more First Amendment friendly

standard. We cannot entirely agree with Copsey that the

Pickering/Connick test finds no application in this context.

Copsey is not a public employee. Nevertheless, the Rules and

Regulations of the Randolph Sheppard Vending Facility Program (June

1987) bear the mark of an employment-type relationship. After

being selected, vendors are trained by the state. The vendors are

issued their licenses for an indefinite term, but may be suspended

or terminated for noncompliance with program rules and regulations

after a full evidentiary hearing. Section 333 itself provides that

blind vendors may not be "disturbed in the security of the

operation of the vending stand" without reasonable or just cause.

The actual vending space is owned by the state; the state furnishes

vendors with such substantial equipment as refrigerators, microwave

ovens, and cash registers. The vendor must maintain this

equipment, but the state is responsible for making repairs. The

vendor is provided with an initial inventory, title to which

15
remains with the state, and he must replace the inventory upon his

resignation. There is some evidence in the record that the vendors

do not have complete freedom to choose their inventory. On the

other hand, vendors are unlike public employees in important

respects. They are not salaried; their income is whatever profits

they make from the operation of the stand. The vendors presumably

set their own hours and prices. Copsey had even hired an employee

of his own. On balance, however, it seems to us that Copsey was

more like a public employee than an ordinary citizen, and therefore

that Pickering and Connick have relevance to this situation.

The applicability of the Pickering/Connick test to certain

license holders, moreover, has been accepted in prior cases in this

Circuit and others. In Davis v. West Community Hospital, 755 F.2d

455, 461 (5th Cir. 1985), we analyzed the First Amendment claim of

a surgeon whose staff privileges were permanently suspended by a

public hospital under Pickering and Connick. We made no mention of

the fact that the surgeon was not an employee of the hospital.

Similarly, in Caine v. Hardy, 943 F.2d 1406, 1415-16 (5th Cir.

1991), this Court sitting en banc used Pickering and Connick to

evaluate the free speech claim of an anesthesiologist who lost his

clinical privileges at a public hospital. Even the dissenters in

Caine argued within the Pickering and Connick framework. See id.

at 1421 (Williams, J., dissenting).

Other circuits have taken a similar approach. Smith v.

Cleburne County Hospital, 870 F.2d 1375 (8th Cir.), cert. denied,

110 S.Ct. 142 (1989), also involved a doctor deprived of staff

privileges at a public hospital. The court recognized that the

16
plaintiff "was an independent contractor rather than a salaried

employee of the Hospital," id. at 1381, but applied Pickering and

Connick nonetheless. The court stated:

"While there is not a direct salaried employment
relationship, there is an association between the
independent contractor doctor and the Hospital that have
similarities to that of an employer-employee
relationship. For instance, there is an application
process for privileges, there are required duties to be
performed by both parties, and there are potential
liabilities each party is responsible for jointly and
severally for tortious conduct. As a result of these
similarities, the application of the Pickering balance
test and its progeny in this case is appropriate." Id.

Finally, in Havekost v. United States Dep't of the Navy, 925 F.2d

316 (9th Cir. 1991), plaintiff was a grocery bagger licensed to

work at a military installation. She sued after her license was

revoked allegedly in retaliation for her speech. The Ninth Circuit

recognized that Pickering and Connick "are not directly on point"

because "Havekost was a licensee on the Navy's premises rather than

a salaried employee." Id. at 318. The court concluded, however,

that "[b]ecause Havekost's dispute, like that of the plaintiff in

Connick, is nothing more than a workplace grievance, ruling for her

would be inconsistent with the principle stated in Connick." Id.

Havekost cited both Smith and Davis in support of its statement

that "Pickering-Connick immunity has been applied, moreover, in

cases where an employer-employee relationship did not exist." Id.

at 319.

We now turn to the question whether Copsey's speech was on a

matter of public concern. The district court's answer, as we have

said, was no. This is an issue that we review de novo. See Rankin

v. McPherson, 107 S.Ct. 2891, 2898 n.9 (1987). Whether Copsey's

17
speech addresses a matter of public concern "must be determined by

the content, form, and context of a given statement, as revealed by

the whole record." Connick, 103 S.Ct. at 1690. The principles

that will guide our determination were summarized recently in Dodds

v. Childers, 933 F.2d 271 (5th Cir. 1991):

"This court has previously found that issues rise to
the level of public concern if an individual speaks
primarily as a citizen rather than as an employee, or if
the information conveyed would be of relevance to the
public's evaluation of the performance of governmental
agencies. The existence of an element of personal
interest on the part of an employee in the speech does
not prevent finding that the speech as a whole raises
issues of public concern. On the other hand, an employee
cannot transform a personal conflict into an issue of
public concern simply by arguing that individual concerns
might have been of interest to the public under different
circumstances. . . .
To rise to the level of public concern, the speech
must have been made primarily as a citizen rather than as
an employee. The court may therefore be required to
assess the primary motivation of the speaker in
evaluating whether her speech addresses a matter of
public concern." Id. at 273 (footnotes and internal
quotation marks omitted).

Based upon the reasons offered for the termination of Copsey's

license in Swearingen's September 10, 1987, letter, the district

court determined, and we agree, that there were three occasions on

which Copsey spoke that are relevant here: first, his letter to the

National Federation of the Blind; second, his televised interview

with a news reporter; and third, his discussions or contacts with

his state representatives. Fidelity to the First Amendment

requires that we examine all three to see if they are fairly

characterized as speech on matters of public concern.

Most of the letter to the National Federation of the Blind,

dated May 30, 1987, and addressed to the Federation president, is

18
devoted to Copsey's complaints about his personal situation in the

capitol basement. Copsey states that his vending space is

inadequate, that unreasonable restrictions have been placed upon

his business, that he has been falsely accused of being rude and

discourteous, and that various capitol officials have been making

things difficult for him. Copsey relates at length his belief that

the blind vendor who had previously worked in the capitol, Chris

Hall, was removed from the capitol tower by members of the Arts and

Historical Society so that they could occupy that more desirable

location. Copsey closes the letter by requesting the Federation's

assistance in a possible legal action on behalf of himself and

Chris Hall. Despite the obvious personal tone of the letter, the

personal for Copsey is also the public. His complaints and

allegations in the letter were tied to his concerns about the

management of the blind vendor program as a whole. The first

sentence of the letter in fact expresses an intent to explain "the

situations [sic] at the Louisiana State Capitol and the vending

program in general in our State." The management of a public

program, of course, is an issue of public interest. His allegation

that "members of the Arts and Historical Society, a private

organization, and their political friends are attempting to remove

the blind from the State Capitol" may be fanciful, but if true it

would certainly be of public concern. The public has an interest

in (not to say an appetite for) hearing of the wildest conspiracy

theories as well as the most conventional wisdom.

Copsey's television appearance aired on June 17, 1987. The

brief broadcast apparently concerned Copsey's displeasure at being

19
excluded from the capitol tower.

Finally, there is the issue of Copsey's communications with

his state representatives. The evidence is sketchy, but apparently

Copsey asked Senator Osterberger to request the Louisiana Attorney

General to issue an opinion on section 333. Certainly, the legal

meaning of this statute raises an issue of some public concern.

While it is plain that much of Copsey's speech was in no small

part motivated by personal concerns, some of it clearly addressed

matters of public interest and concern beyond his individual

situation. The part of speech which is on matters of public

concern does not lose its First Amendment protection merely because

other parts are essentially related to personal workplace

concerns.8 Whether section 333 extended to the capitol building as

a whole, whether section 333 is subject to section 150.1, and

whether the Foundation's operation in the tower is lawful, are all

matters of general public concern, apart from their effect on

Copsey. The larger essence of Copsey's publicly aired speech as to

these matters was not related to the ongoing operation of his own

stand, or to the day-to-day interaction with the Division which

that operation entailed, as in the typical Pickering/Connick-type

case. These aspects of Copsey's speech, so far as they might

impact his own situation, would impact aspects of it that were not

those which are analogous to the employee-employer relationship.

8
See, e.g., Brawner v. City of Richardson, 855 F.2d 187, 192
(5th Cir. 1988) ("it is clear that only a portion of a
communication need address a matter of public concern"; footnote
omitted); Thompson v. City of Starkville, 901 F.2d 456, 464-65
(5th Cir. 1990).

20
Even though we have held that the Pickering/Connick test is

relevant to Copsey's claim, we remain mindful that it is

indisputably clear that he was not an employee, but was only in a

situation partly analogous thereto. There is sufficient evidence

from which a fact-finder could conclude that Swearingen terminated

Copsey's license because of those aspects of Copsey's speech which

addressed matters of public concern, and would not have done so but

for such protected speech.

We also conclude that the district court erred in awarding

qualified immunity to Swearingen. The relevant question here is

not whether the law was settled in the abstract, but whether,

measured by an objective standard, a reasonable official would have

known that his action was illegal. See Click v. Copeland, 970 F.2d

106, 109 (5th Cir. 1992). A reasonable officer, we think, would

have to know that revoking a blind vendor's license in retaliation

for such publicly-aired complaints violated the First Amendment.

IV. Copsey's Conspiracy Claim.

Copsey argues that there existed a conspiracy among the

defendants to violate his constitutional rights. The district

court dismissed all of Copsey's conspiracy claims when it granted

the defendants' motion for summary judgment. See Copsey I, 762

F.Supp. at 1260. Because we hold that Copsey's Fourteenth

Amendment rights were not violated, Copsey cannot claim that there

was a conspiracy to violate those rights. But it remains a

possibility that some or all of the defendants conspired to revoke

Copsey's license in violation of the First Amendment. As we read

his complaint, Copsey alleges that Swearingen, Alario, Nunez,

21
Dicharry, Reichert, and Stockman were part of this conspiracy.

Copsey's complaint alleges Swearingen "is responsible for the

unconstitutional revocation of Plaintiff Kerry Copsey's blind

vendors license"; that Alario and Nunez are "responsible for

conspiring to unconstitutionally revoke Kerry Copsey's blind

vendors license"; that Dicharry and Reichert are "responsible for

enforcing the revocation of Kerry Copsey's blind vendors license;"

and that Stockman is "responsible for conspiring to or failing to

prevent a conspiracy to unconstitutionally revoke Kerry Copsey's

blind vendors license." We believe that the defendants other than

Swearingen can be liable for conspiring to violate Copsey's First

Amendment rights only insofar as they conspired with Swearingen,

who was the person with the authority to terminate Copsey's license

and actually did so. We also note that the complaint accuses

Swearingen of being "responsible" for the termination and the other

defendants of being responsible for "conspiring in" or "enforcing"

or "failing to prevent" the termination.

Copsey's complaint itself fails to offer any facts which would

justify a finding that a conspiracy existed; it contains only

naked, conclusional allegations. The defendants said as much in

their motion for summary judgment and the district court agreed

with them: "[T]he allegations made in the complaint regarding an

alleged conspiracy are vague and conclusory. No specific facts are

alleged which actually indicate that anyone conspired with anyone

else about anything." Copsey I, 762 F.Supp. at 1260. Copsey's

opposition to the motion for summary judgment, however, does

attempt to flesh out the alleged conspiracy. To survive summary

22
judgment, it was Copsey's burden at that point to cite specific

evidence in the record which would create a genuine issue for

trial, such that a rational fact-finder could return a verdict in

his favor. See Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505

(1986); Matsushita Electric Indus. Co. v. Zenith, 106 S.Ct. 1348

(1986). With this standard in mind, we examine the evidence cited

in Copsey's summary judgment opposition.9

We begin by noting that Swearingen testified at his deposition

that he acted alone in his decision to revoke Copsey's license and

that all other defendants submitted affidavits denying that they

participated in any conspiracy. Copsey must therefore have

evidence which could lead a reasonable jury to believe otherwise.

Reichert stated in his deposition that he and Dicharry delivered

the first letter of September 10, 1987, in which Swearingen revoked

Copsey's license, and that the two read over the second September

10th letter outlining the reasons for the revocation. Swearingen

also said in his deposition that the two men read the letter and

approved of its contents. This evidence does not establish a

conspiracy on the part of Reichert and Dicharry (the latter of whom

is in any event deceased and no longer a party, see note 2, supra).

These two were Swearingen's subordinates and may have helped

9
Copsey's brief on appeal utilizes more evidence than his
opposition to the motion for summary judgment or brief in support
thereof. The district court was under no obligation to consider
evidence that Copsey did not bring forth in opposition to the
motion for summary judgment. Therefore, we will consider only
that evidence which Copsey marshalled in opposition to the motion
for summary judgment. See Skotak v. Tenneco Resins, Inc., 953
F.2d 909 (5th Cir. 1992).

23
Swearingen carry out the revocation, but this evidence does not

establish that they were actually involved in the decision to

revoke Copsey's license. Indeed, Copsey's complaint does not so

allege.

Copsey's evidence against Stockman is a memo written by

Schwing to his file in which Schwing says that he "suggested that

he [Stockman] try to get Carey [Copsey] to curtail his trying to

contact individual people in the building to enlist their support."

This evidence does not prove a conspiracy between Stockman and

Schwing, let alone Stockman and Swearingen. That Schwing may have

suggested that Stockman urge Copsey to curtail his "campaign" is

not evidence of the charged conspiracy.

The evidence that Nunez and Alario conspired with Swearingen

comes from an affidavit executed by Copsey.

"On September 9, 1987, I was required to meet Mr.
Jerry Swearingen at his office. Mr. Swearingen wanted to
have a discussion with me alone. At this meeting, I was
given two options; either to transfer to another stand,
or to be terminated. The reason I was given these
options was because individuals were complaining about me
at the State Capitol. When I insisted on being told who
these individuals were, Mr. Swearingen stated he would
not tell me. I then asked 'It was Senator Nunez and
Representative Alario, wasn't it?' He then replied
'yes,' but stated he would deny this if ever asked."

Swearingen testified at his deposition that it was his "perception"

that Nunez and Alario wished Copsey removed and that this was an

"inference" he had picked up from Duke. However, Swearingen denied

having made the statement alleged by Copsey and said further that

he was not pressured by anyone into making the decision to revoke

Copsey's license, that the decision was his alone. Swearingen's

deposition, in our view, fails to establish a conspiracy because he

24
states only that he perceived that Nunez and Alario wanted Copsey

removed and that no pressure was brought to bear upon him.

Copsey's affidavit, while more incriminating, could not provide the

basis for a jury verdict that Nunez and Alario conspired with

Swearingen because, even though it would be admissible at trial

against Swearingen as the statement of a party opponent, it would

not be admissible against Nunez and Alario. Assuming that

Swearingen's statement is the statement of one conspirator about

his co-conspirators, it would be admissible only if made in

furtherance of the conspiracy, which it plainly was not. See FED.

R. EVID. 801(d)(2)(E). Nor would it be admissible against Nunez and

Alario as a statement against interest, because the declarant

(Swearingen) is available. See FED. R. EVID. 804(b)(3).

In sum, the district court properly granted summary judgment

dismissing Copsey's conspiracy claims.

V. Copsey's Motion to Join an Additional Defendant.

On May 15, 1990, Copsey filed a motion to join Michael Baer,

III, as a defendant pursuant to Federal Rules 19 and 20. The

district court denied this motion when it ruled upon the

defendants' motion for summary judgment. See Copsey I, 762 F.

Supp. at 1252. The court committed no error in doing so. Because

of the one-year statute of limitations applicable to this suit,

Copsey cannot complain of any act committed by Baer prior to May

15, 1989. But by no later than late February 1988, Copsey was

relicensed, reinstated, financially compensated, and taken off

probation. Any conceivable wrong that Baer could have committed

was therefore more than a year before Copsey's attempt to join him

25
as a defendant.10

VI. Copsey's Motion for Reconsideration.

Following the district court's grant of summary judgment to

defendants on April 23, 1991, Copsey moved for reconsideration on

the ground of newly discovered evidence. The district court denied

the motion on June 5, 1991, ruling that Copsey's evidence "is

neither newly discovered nor relevant as to any issues in this

action." Copsey himself admits that the evidence in question was

in his possession four weeks before the district court ruled on the

summary judgment motion. The only explanation that Copsey offers

for his failure to bring the evidence to the court's attention

during the pendency of the summary judgment motion is that he

thought the court already had more than enough evidence to rule in

his favor. The district court did not abuse its discretion in

denying the motion. See Lavespere v. Niagara Mach. & Tool Works,

Inc., 910 F.2d 167, 173-175 (5th Cir. 1990).11

Conclusion

For the foregoing reasons, the judgment of the district court

is

10
Also, Copsey's motion, which was filed more than twenty
months after the initiation of this lawsuit and just two days
before the defendants filed their motion for summary judgment,
was less than timely.
11
Copsey's complaints of evidentiary rulings at the jury trial
present no reversible error. The admission of his letter to the
National Federation of the Blind, from which his wife read at
trial, was obviously not an abuse of discretion. The exclusion
at trial of two other writings was, if error at all, not
prejudicial, as they were not relevant to the basis on which the
directed verdict was granted. In any event, we have set the
directed verdict aside.

26
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

27