Blackburn v. City of Marshall

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 93-5149
__________________

JIMMY BLACKBURN,

Plaintiff-Appellant,

versus

MARSHALL CITY OF, ET AL.,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the
Eastern District of Texas
______________________________________________

(January 12, 1995)

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Jimmy Blackburn (Blackburn) sued the City

of Marshall, Texas (the City), Marshall Chief of Police Chuck

Williams (Williams), and former Harrison County Sheriff Bill Oldham

(Oldham) (collectively Defendants), asserting constitutional and

state law claims arising from the revocation of his permission to

use the police radio frequency in his towing and wrecker service

business. Blackburn appeals the district court's dismissal of his

suit for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). We affirm in part and reverse and remand in
part.

Facts and Proceedings Below

Blackburn owns and operates a towing and wrecker service in

Harrison County, Texas. The backdrop of this suit centers around

the wrecker business in Marshall, Texas, the county seat of

Harrison County. The City provides local towing and wrecker

operators with two distinct sources of business. The first

category is the removal of abandoned vehicles from public property,

for which the City awards a competitive contract to one local

wrecker service. The second source is the removal of cars that

have been involved in accidents, for which the City employs a

rotating on-call system. Both these distinct operations are

involved in this suit. A third source of business for local

wreckers, independent of any City involvement or regulation,

consists of customer requests for the assistance of a specific

wrecker.

To award the contract for the removal of abandoned vehicles,

the City solicited bids from local wreckers through the publication

of two notices in the local newspaper as required by Texas law.

TEX. LOCAL GOV'T CODE ANN. § 252.0411 (Vernon 1988). Blackburn, who

does not subscribe to the newspaper, did not see the notices and

therefore did not participate in the bidding process. Upset about

missing the opportunity to bid, Blackburn, on or about January 23,

1992, telephoned Williams to complain about this bidding procedure.

In this conversation, Williams told Blackburn that his attitude in

complaining about the bidding procedure was improper and that he

would therefore be removed from the rotation list for the accident

2
vehicles. Later that day, Williams revoked Blackburn's permission

to use the police radio frequency. On January 24, Blackburn

received a letter from Oldham informing him that his wrecker

company had been removed from the Harrison County rotation list.

In a January 26, 1992, article in the local newspaper, Williams

repeated his earlier statement: "I removed (Blackburn) [from the

rotation list] because of his attitude. I don't need him

representing the city of Marshall." This is the only adverse

statement about Blackburn in the article, a copy of which is

appended to the complaint.

The city police, the county sheriff, and the Texas Department

of Public Safety often require the assistance of wreckers to remove

damaged vehicles from accident scenes. In an effort to ensure

equitable distribution of this official wrecker business, a group

of local wreckers formed the Harrison County Wreckers Association

(the Association). The Association notifies the city police, the

county sheriff, and the Texas Department of Public Safety which

wrecker service is available on call to receive requests for towing

from the police dispatcher. It is not alleged that Defendants

participate in the administration of the Association or play any

role in the Association's selection of the on-call wrecker. Unless

an accident victim requests a specific wrecker, the on-call wrecker

tows all vehicles involved in traffic accidents. The Association

requires, as a prerequisite for membership, permission to use the

official police radio frequency. As a result of the City's

suspension of his police radio frequency privileges, Blackburn

could no longer be an Association member and therefore could not

3
participate in the rotation system for removing accident vehicles.

After unsuccessfully attempting to settle his dispute with

various city officials, including Williams and the mayor, and with

Oldham, Blackburn requested a hearing to challenge the suspension

of his radio privileges and his concomitant removal from the

rotation list. Although Blackburn's pleadings are inconsistent on

whether he received a hearing,1 his brief on appeal suggests that

he did receive a hearing. Blackburn also alleges that, on or about

October 6, 1992, he was informed for the first time that his

permission to use the police radio frequency was revoked because of

information retrieved from the National Law Enforcement Computer

Network (NCIC) indicating that he had a 1980 grand larceny

conviction in Virginia. Blackburn denied this assertion and

presented an affidavit of a Virginia court administrator stating

that he did not have a grand larceny conviction.2

Blackburn complains that he has suffered substantial business

losses as a result of Defendants' actions. In addition to losing

the business generated by the on-call rotation system, Blackburn

asserts that many of his customers have ceased to use his services

1
In paragraph 36 of his complaint, Blackburn states both that
he received a hearing and that he did not.
2
Blackburn's complaint does not describe the circumstances
surrounding this October 6 notice in any meaningful manner.
Blackburn never states who informed him or how he came to learn
of this newly discovered reason for the suspension of his radio
privileges or whether (or, if so, how) this reason was ever
memorialized. Nor does he allege that any defendant made or
caused to be made any public statement concerning this Virginia
conviction. Rather, the complaint merely states that
"[p]laintiff was informed that the NCIC computer had revealed
that Blackburn had been convicted of grand larceny in the State
of Virginia in 1980."

4
in the wake of the publication of the January 26 newspaper article.

Blackburn filed this suit against Defendants, pursuant to 42 U.S.C.

§ 1983, alleging that he was denied business referrals from the

City and County in retaliation for his speech on a matter of public

concern in violation of the First Amendment, and that Defendants'

actions deprived him of both a liberty and a property interest

without due process in violation of the Fourteenth Amendment.3

Blackburn also asserts several pendent (or supplemental) state law

claims for defamation and tortious interference with business

relationships.

After filing an answer, the City and Williams moved to dismiss

the complaint for failure to state a cause of action under Federal

Rule of Civil Procedure 12(b)(6). Oldham separately moved to

dismiss on the same ground. Oldham and Williams also asserted

qualified immunity defenses. The district court granted

Defendants' motions to dismiss under Rule 12(b)(6). The district

court held that Blackburn's First Amendment claim failed because he

was not a public employee. Rejecting Blackburn's due process

claims, the district court held that the facts alleged failed to

satisfy the stigmatization requirement and that he did not have a

property interest in remaining on the on-call rotation list.

Having dismissed all the federal claims, the district court

dismissed the pendent (or supplemental) state law claims.

3
Although Blackburn's complaint included a Fourth Amendment
claim, he abandoned this claim below. Blackburn also alleges
that Defendants' actions violated the Fifth Amendment. Because
the due process component of the Fifth Amendment applies only to
federal actors, we will analyze Blackburn's claim under the
Fourteenth Amendment.

5
Blackburn now appeals. We affirm the dismissal of Blackburn's due

process claims against all three defendants, affirm the dismissal

of all other claims against Oldham, and reverse the dismissal of

the First Amendment claim, and the pendent (or supplemental) state

law claims, against the City and Williams.

Discussion

I. Standard of Review

We review de novo a district court's dismissal for failure to

state a claim under Rule 12(b)(6). Leffall v. Dallas Independent

School Dist., 28 F.3d 521, 524 (5th Cir. 1994). We must accept

plaintiff's factual allegations as true. Cinel v. Connick, 15 F.3d

1338, 1341 (5th Cir.), cert.denied, 115 S.Ct. 189 (1994). A Rule

12(b)(6) dismissal will not be affirmed "unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief." Conley v. Gibson, 78

S.Ct. 99, 102 (1957); see also Mitchell v. McBryde, 944 F.2d 229,

230 (5th Cir. 1991). However, "[d]ismissal is proper if the

complaint lacks an allegation regarding a required element

necessary to obtain relief." 2A Moore's Federal Practice ¶ 12.07

[2.-5] at 12-91 (footnote omitted). And, "conclusory allegations

or legal conclusions masquerading as factual conclusions will not

suffice to prevent a motion to dismiss." Fernandez-Montes v.

Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).

In considering a defendant's claim of qualified immunity, our

first inquiry is whether the plaintiff alleged "the violation of a

clearly established constitutional right." Siegert v. Gilley, 111

S.Ct. 1789, 1793 (1991). The second inquiry is whether the

6
defendant is entitled to qualified immunity. Id. State officials

are shielded from liability under qualified immunity unless they

violate a constitutional right that was clearly established at the

time of their conduct. Pfannstiel v. Marion, 918 F.2d 1178, 1183

(5th Cir. 1990).

II. First Amendment Claim

Blackburn argues that Defendants' revocation of his permission

to use the police radio frequency was in retaliation for the

exercise of his First Amendment right to free speech. According to

Blackburn's complaint, he spoke out on a matter of public concern:

the bidding procedure for the abandoned vehicles contract.

Blackburn alleges that, as a result, the City revoked his

permission to use the police radio frequency, thereby rendering him

ineligible for continued membership in the Association and

participation in its rotation list. The district court rejected

Blackburn's First Amendment claim on the basis that he was not a

public employee and thus was not entitled to protection against

retaliation for speaking out on a matter of public concern.

At the outset, we reject the district court's apparent

assumption that only public employees enjoy the protections of the

First Amendment. The district court's reasoning is inverted.

Every citizen enjoys the First Amendment's protections against

governmental interference with free speech, but the First Amendment

rights of public employees are restricted by the nature of the

employer-employee relationship.

It is well established that "even though a person has no

`right' to a valuable government benefit and even though the

7
government may deny him the benefit for any number of reasons,

there are some reasons upon which the government may not rely. It

may not deny a benefit to a person on a basis that infringes his

constitutionally protected interestsSQespecially, his interest in

freedom of speech." Perry v. Sindermann, 92 S.Ct. 2694, 2697

(1972). Because of the special nature of the relationship between

an employer and its employees, the Supreme Court has recognized

that "the State has interests as an employer in regulating the

speech of its employees that differ significantly from those it

possesses in connection with regulation of the speech of the

citizenry in general." Pickering v. Board of Education, 88 S.Ct.

1731, 1734 (1968); see also Connick v. Myers, 103 S.Ct. 1684

(1983). For this reason, the First Amendment rights accorded

public employees are governed by the two-prong test announced in

Pickering and Connick. Under this test, a public employee alleging

a First Amendment violation on the ground that he has been

discharged for his speech must first establish that his speech may

be "fairly characterized as constituting speech on a matter of

public concern." Connick, 103 S.Ct. at 1690. The second prong

teaches that there is a First Amendment violation only if the

employee's interest in speaking outweighs "the interest of the

State, as an employer, in promoting the efficiency of the public

services it performs through its employees." Pickering, 88 S.Ct.

at 1734-35.

Having concluded that Blackburn was not a public employee, the

district court held that he was not entitled to First Amendment

"protection against retaliatory discharge for speaking out on

8
matters of public concern." Although we agree Blackburn was not a

public employee, that fact alone cannot end a court's First

Amendment analysis. Outside the somewhat expanded context of

public employment under Pickering and Connick, a court generally

examines a free speech claim under the more First Amendment

friendly standard enunciated in Perry. 88 S.Ct. at 2697.

Accordingly, the district court erred in dismissing Blackburn's

free speech claim on the ground that he was not a public employee.

Because of the public concern requirement in the public employee

line of cases, a court's determination of whether to apply the

Pickering/Connick standard or the broader protections of Perry may

have a determinative effect on a plaintiff's First Amendment claim.

See, e.g., Havekost v. United States Dep't of the Navy, 925 F.2d

316, 318 (9th Cir. 1991) ("Because protected speech must address a

matter of public concern in the Pickering/Connick cases, an

employee may have a steeper hurdle than a Perry plaintiff.").

Without question, a public employee discharged for speech-

related activity triggers the Pickering/Connick analysis. The more

problematic inquiry is whether a plaintiff such as Blackburn is a

public employee for First Amendment purposes. Because the facts of

this case do not involve a standard public employer-employee

relationship, we first address whether to approach Blackburn's

claim under Pickering and Connick or under the broader protections

of Perry. Although the Pickering/Connick test arose in the context

of public employment, courts have not strictly cabined its

application. In general, courts have invoked two reasons for

applying the test outside of the employment context: that the

9
relationship involved was analogous to an employer-employee

relationship and that the principle underlying Connick warranted

its application. Applying these two justifications to the present

case, we conclude that the record before us does not demonstrate

that Blackburn's relationship with the City was such as to warrant

extending the public employee standard to his instant First

Amendment claim.

Courts have extended the Pickering/Connick analysis to cases

involving relationships analogous to an employment relationship.

For example, in Smith v. Cleburne County Hosp., 870 F.2d 1375 (8th

Cir.), cert. denied, 110 S.Ct. 142 (1989), a doctor filed suit

against a public hospital alleging that it terminated his staff

privileges in retaliation for his speech in violation of the First

Amendment. The Eighth Circuit recognized that the doctor was not

a salaried public employee but nonetheless applied Pickering and

Connick, reasoning that the doctor's relationship with the state

contained sufficient indicia of a public employment relationship.

The Court explained:

"While there is not a direct salaried employment
relationship, there is an association between the
independent contractor doctor and the Hospital that [has]
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.
at 1381.

See also Caine v. Hardy, 943 F.2d 1406, 1415-16 (5th Cir. 1991) (en

banc), cert. denied, 112 S.Ct. 1474 (1992) (applying the

10
Pickering/Connick analysis to the First Amendment claim of an

anesthesiologist who lost his clinical privileges at a public

hospital); Davis v. West Community Hospital, 755 F.2d 455, 461 (5th

Cir. 1985) (using Pickering/Connick test to evaluate free speech

claim of a surgeon whose staff privileges were suspended by a

public hospital).

We conclude that the relationship between Blackburn and

Defendants does not rise to the level of even a quasi-employment

relationship like that in the medical staff privileges cases.

Accordingly, we hold that the facts of this case are not

sufficiently analogous to the employment cases to warrant the

direct and full application of Pickering and Connick.

We now consider whether the rationale underlying Connick

nevertheless warrants the application of the public employee

standard in this case. In Connick, the plaintiff, upset about an

impending transfer, circulated a questionnaire concerning office

morale, the need for a grievance committee, internal office

procedures regarding transfers, and various other work-related

complaints. 103 S.Ct 1684. After losing her job in the wake of

distributing the questionnaire, the plaintiff filed suit, alleging

that the termination violated her First Amendment rights.

Rejecting the First Amendment claim, the Court stated that "a

federal court is not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency allegedly

in reaction to the employee's behavior." Id at 1690. As the Court

explained, "[I]t would indeed be a Pyrrhic victory for the great

principles of free expression if the Amendment's safeguarding of a

11
public employee's right, as a citizen, to participate in

discussions concerning public affairs were confused with the

attempt to constitutionalize the employee grievance that we see

presented here." Id. at 1694. Thus, the Court in Connick

recognized that a public employer enjoys wide latitude in the

administration of its own affairs and underscored a reluctance to

convert every workplace grievance into a constitutional claim.

In Havekost v. United States Dep't of the Navy, 925 F.2d 316

(9th Cir. 1991), the plaintiff, a grocery bagger licensed to work

at a military installation, alleged that the Navy terminated her

license in retaliation for her speech. Recognizing that Havekost

was a licensee rather than a salaried public employee, the Ninth

Circuit stated that Pickering and Connick "are not directly on

point." Id. at 318. Nevertheless, the court held that the

principle enunciated in Connick mandated the application of the

public employee standard to Havekost's First Amendment claim:

"Because 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. (emphasis

added).

In Copsey v. Swearingen, 36 F.3d 1336 (5th Cir. 1994), the

plaintiff, Copsey, operated a "blind" vending stand in the

Louisiana state capitol under a license from a state agency.

Copsey alleged that his First Amendment rights were violated by the

termination of his license on account of his complaints about the

licensing program, and asserted that the Pickering/Connick test

should not apply because he was not a state employee. We responded

12
to this contention by stating "[w]e cannot entirely agree with

Copsey that the Pickering/Connick test finds no application in this

context." Id. at 1344. Examining the relationship between the

licensee and the agency,4 we concluded that "Copsey was more like

a public employee than an ordinary citizen, and therefore . . .

Pickering and Connick have relevance to this situation." Id. In

holding that certain portions of Copsey's speech were sufficiently

on matters of public concern to be protected under the First

Amendment, we stated that although these portions "might impact his

own situation," they "would impact aspects of it that were not

those which are analogous to the employee-employer relationship.

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." Id. at 1346.

While we in Copsey and the Ninth Circuit in Havekost were able

to analogize the relationship between the plaintiff and defendant

to that of employee-employer, plainly any such analogy is vastly

4
We stated that the agency rules governing the blind vendors
under the licensing program "bear the mark of an employment-type
relationship." Id. We went on to note that:

"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 . . .
. 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
remains with the state, and he must replace the
inventory upon his resignation." Id.

13
weaker in the present case. Moreover, Blackburn's complaint

grounds his free speech claim on his telephone conversation with

Williams in which he alleges he complained about the public bidding

procedure for the abandoned vehicles contract. In retaliation for

this speech concerning the public bidding process, Williams

allegedly revoked Blackburn's permission to use the police radio

frequency. Thus Blackburn's speech did not relate to the

relationship from which he was terminated, and his speech cannot be

equated to the workplace grievances in Connick and Havekost.

Because Blackburn's relationship with Defendants is not

sufficiently analogous to the public employment relationship, and

because his speech is not a work-related grievance, we hold that

under clearly established law Blackburn's First Amendment claim

should be analyzed pursuant to Perry rather than Connick.

Under Perry, the government "may not deny a benefit to a

person on a basis that infringes his constitutionally protected

interest[] . . . in freedom of speech." Perry, 92 S.Ct. at 2697.

In North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330

(5th Cir. 1986), the North Mississippi Times published editorials

and news stories criticizing several members of the county board of

supervisors. As a result, the county ceased advertising in the

Times and threatened other advertisers with a loss of county

business unless they withdrew their advertisements from the Times.

The Times sued the county alleging that the withdrawal of county

advertising and the threats to other Times advertisers constituted

retaliation for its speech in violation of its First Amendment

rights. Reversing the district court's directed verdict for the

14
defendants, this Court applied the Perry holding:

"Although the Times may have had no right to receive
certain legal advertising from the County Board of
Supervisors, it would violate the Constitution for the
Board to withhold public patronage, in the form of its
advertising, from the Times in retaliation for that
newspaper's exercise of first amendment rights . . . .
To permit such actions would allow the government to
produce a result which [it] could not command directly,
that is, denying the Times business in retaliation for
its protected speech." Id. at 1337 (citation and
internal quotation marks omitted).5

Having determined that the district court erred in failing to

adjudicate Blackburn's free speech claim under Perry, we consider

the propriety of its dismissal of Blackburn's claim against all

three defendants.

As to Oldham, the complaint does not allege any First

Amendment violation by him, or that he did anything in retaliation

for any speech by Blackburn.6 The district court did not err in

dismissing as to Oldham the complaint's First Amendment claims. As

to Williams, we hold that for purposes of a Rule 12(b)(6) motion

5
In Abercrombie v. City of Catoosa, Okla., 896 F.2d 1228
(10th Cir. 1990), the Tenth Circuit analyzed a First Amendment
claim asserted by a wrecker who was removed from a rotation list
after testifying against the city in a federal trial and
campaigning against the mayor. Reversing the district court's
grant of judgment notwithstanding the verdict on the plaintiff's
First Amendment claim, the Court applied Perry and reinstated the
jury verdict on the First Amendment claim.
6
We also observe that Blackburn's detailed response to
Oldham's motion to dismiss asserted only that Oldham violated
Blackburn's due process rights to "his liberty and property
interests in his business without giving him notice or the
opportunity to be heard"; it said nothing about the First
Amendment, free speech, or retaliation. In contrast, Blackburn's
response to the motion to dismiss of Williams and the City
specifically asserted that "the actions by the City and Defendant
Williams were retaliatory actions in response to Blackburn's free
speech on a public issue."

15
the complaint sufficiently alleges that Williams violated

Blackburn's First Amendment rights and that any reasonable official

in Williams' position should have so realized. See Copsey; North

Mississippi. As to the City, though the complaint is considerably

less precise than it should be, and the question presented is a

close one, we ultimately conclude that for Rule 12(b)(6) purposes

it sufficiently alleged a violation, or at least ratification, by

the City's policymakers.7

Accordingly, we reverse the district court's dismissal of the

First Amendment claims as to the City and Williams, but affirm as

to Oldham.

III. Due Process Claims

In a section 1983 cause of action asserting a due process

violation, a plaintiff must first identify a life, liberty, or

property interest protected by the Fourteenth Amendment and then

identify a state action that resulted in a deprivation of that

interest. San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 700 (5th

Cir. 1991); see also Board of Regents v. Roth, 92 S.Ct. 2701, 2705

(1972). Blackburn's complaint alleges that Defendants' actions

7
The complaint expressly alleged City liability on the basis
of, inter alia, ratification. See City of St. Louis v.
Praprotnik, 108 S.Ct. 915, 926 (1988) ("If the authorized
policymakers approve a subordinate's decision and the basis for
it, their ratification would be chargeable to the municipality").
We do not suggest that the complaint is not in this respect
subject to proper motion under Fed. R. Civ. P. 6(e) or that if
clarified it would not be subject to a Rule 12(b)(6) motion or a
motion for summary judgment by the City, either as respects
ratification or as to whether the officials in question were
policymakers in the relevant sense. See Jett v. Dallas ISD, 7
F.3d 1241 (5th Cir. 1993).
Nor do we suggest that Williams will not be entitled to
summary judgment.

16
deprived him of protected liberty and property interests without

due process of law.

A. Stigma Claim

Blackburn alleges that Williams' statement in the newspaper

stigmatized him and damaged his reputation in the community,

thereby depriving him of a protected liberty interest.8 In Paul v.

Davis, 96 S.Ct. 1155, 1165 (1976), the Supreme Court held that the

infliction of a stigma on a person's reputation by a state

official, without more, does not infringe upon a protected liberty

interest. As the Court in Paul stated, there is "no constitutional

doctrine converting every defamation by a public official into a

deprivation of liberty within the meaning of the Due Process Clause

of the Fifth or Fourteenth Amendment." Id. at 1161.

We have applied the holding of Paul by requiring a section

8
The complaint alleges:

"On or about January 24, 1992, Defendant Williams
was interviewed by the local Marshall newspaper and
affirmed that Plaintiff Blackburn had been removed from
the rotation list due to Blackburn's 'attitude.'
Defendant Williams further stated in the interview that
the City of Marshall did not want people like Blackburn
working for the City of Marshall. See Exhibit 'A.'

Plaintiff Blackburn's business immediately began
suffering huge losses. Blackburn's wreckers were no
longer called to provide services for the City of
Marshall and after the publication of the newspaper
article many local business which had utilized
Blackburn's services in the past refused to do business
with Blackburn and cited the negative comments of the
Police Chief concerning Blackburn which had been
printed in the local newspaper."

The complaint also asserts that "Plaintiff was deprived of a
liberty interest, Plaintiff's good name and reputation, without a
chance for a name clearing hearing due to Defendant Williams'
publication of defamatory material concerning the Plaintiff."

17
1983 plaintiff to show stigma plus an infringement of some other

interest. Kacal, 928 F.2d at 701. To satisfy the stigma prong of

this test, "the plaintiff must prove that the stigma was caused by

a false communication." Phillips v. Vandygriff, 711 F.2d 1217,

1221 (5th Cir. 1983) (citing Codd v. Velger, 97 S.Ct. 882 (1977)).

Moreover, we have found sufficient stigma only where a state actor

has made concrete, false assertions of wrongdoing on the part of

the plaintiff. Kacal, 928 F.2d at 701.

It is evident that the allegations of Blackburn's complaint

fail to state a claim for the deprivation of a liberty interest in

this respect. As a threshold matter, Blackburn cannot maintain his

liberty interest claim against Oldham because his complaint does

not allege that Oldham made (or caused to be made) any statement at

all. As far as the remaining defendants are concerned, the

allegations in Blackburn's complaint concerning Williams' statement

to the newspaper do not meet the stigma requirement. Because

Blackburn has grounded his liberty interest claim solely on

Williams' statement to the newspaper, it must fail. In Connelly v.

Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1989),

the plaintiff based his reputational due process claim on the

defendant's statement that, "We are of the opinion that Mr.

Connelly does not possess the qualifications for the position . .

. ." Rejecting this claim under the stigma-plus-infringement test,

we held that "[t]he opinion of the [defendant] contains no false

factual representations, concrete or otherwise." Id. In Wells v.

Hico ISD, 736 F.2d 243 (5th Cir. 1984), cert. denied, 106 S.Ct. 11

(1985), we observed that "[t]he charges must be false" and that

18
"for a charge to be stigmatizing it must be worse than merely

adverse; it must be such as would give rise to 'a "badge of

infamy," public scorn, or the like.'" Id. at 256 & n.16.

Williams' statement voicing his opinion about Blackburn's attitude

does not constitute a false factual representation. Indeed,

Blackburn has made no allegation that Williams' statement is false,

a prerequisite for a liberty interest-stigma claim. See Codd, 97

S.Ct. at 884; Connelly. Further, the statement does not accuse

Blackburn of any wrongdoing. It simply is not stigmatizing. Wells

at 256 & n.16.9 Accordingly, we hold that Blackburn has failed to

meet the stigma requirement of the stigma-plus-infringement test,

and therefore the district court properly dismissed his liberty

interest-stigma claim.10

B. Right to Engage in a Calling Claim

Blackburn also argues that he had a property interest in

remaining on the on-call list, and that Defendants' actions

9
We are unpersuaded that Williams's statement concerning
Blackburn's attitude rises to the level of public accusations of
lying on a job application, see White v. Thomas, 660 F.2d 680
(5th Cir. 1981), cert. denied, 102 S.Ct. 1731 (1982), or
falsifying travel vouchers, see Robinson v. Wichita Falls & North
Texas Community Action Corp., 507 F.2d 245, 252 (5th Cir. 1975).
10
Although Blackburn's complaint alleges that the October 6
statement concerning the Virginia felony conviction was false, he
never states which, if any, defendant made the statement.
Moreover, he never alleges that this statement was made public or
that any defendant made it public. A prerequisite to raising a
liberty interest claim based on stigma is that the statement be
made public by the defendant. Arrington v. County of Dallas, 970
F.2d 1441, 1447 & n.4 (5th Cir. 1992); Huffstutler v. Bergland,
607 F.2d 1090, 1092 (5th Cir. 1979). See also, e.g., Bishop v.
Wood, 96 S.Ct. 2074, 2079 (1976). Accordingly, this alleged
statement cannot form the basis for Blackburn's liberty interest
claim.

19
deprived him of this interest without due process.11 In order for

a person to have a property interest within the ambit of the

Fourteenth Amendment, he "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." Board of Regents v. Roth, 92 S.Ct. 2701, 2709 (1972).

Property interests are not created by the Constitution; rather,

they stem from independent sources such as state statutes, local

ordinances, existing rules, contractual provisions, or mutually

explicit understandings. Perry, 92 S.Ct. at 2699-2700. However,

it is clear that "the sufficiency of the claim of entitlement must

be decided by reference to state law." Bishop v. Wood, 96 S.Ct.

2074, 2077 (1976) (footnote omitted). See also Logan v. Zimmerman

Brush Co., 102 S.Ct. 1148, 1155 (1982) ("The hallmark of property

. . . is an individual entitlement grounded in state law, which

cannot be removed except 'for cause'"); Wells at 252 (same);

Henderson v. Sotelo, 761 F.2d 1093, 1096 (5th Cir. 1985); Williams

v. Texas Tech Univ. Health Sciences Ctr., 6 F.3d 290, 293 (5th Cir.

1993), cert. denied, 114 S.Ct. 1301 (1994).12

11
The complaint alleges "Plaintiff was deprived of property
which was a source of income and revenue to him, namely the
ability to tow and store cars for the City of Marshall and
Harrison County and to utilize the radio network without notice,
without a chance for appeal."
12
We do not suggest that federal lawSQsuch as a federal
statute or the likeSQcould not create a property interest. Cf.
Mathews v. Eldridge, 96 S.Ct. 893 (1976). The point is simply
that the Constitution itself does not create such interests.
Some other applicable substantive law must establish the claim of
entitlement and prevent its removal except for substantive cause.
No federal statute or regulation or the like is claimed to grant
a relevant entitlement here.

20
 Blackburn cites, and we have found, no decision of any Texas

court indicating that he had any entitlement to be or remain on the

on-call rotation list. Nor does he cite, and we have not found,

any Texas statute or administrative regulation, or any ordinance of

the City or Harrison County, which might be construed to provide

such an entitlement.

Several courts have addressed the issue of whether a wrecker

has a protected interest in remaining on an on-call rotation list.

Because the teachings of the Supreme Court direct us to determine

the existence of a protected property interest based on state law,

local ordinances, contracts, and mutually explicit understandings,

we cannot distill a specific rule from these wrecker cases to

govern all cases involving a person's removal from a rotation list.

Instead, we must examine the facts of the case before us and

determine whether Blackburn has asserted a legitimate,

constitutionally protected claim of entitlement to remain on the

rotation list, or whether he has merely alleged a unilateral

expectation of receiving government referrals. Nevertheless, the

wrecker cases, as well as other cases addressing property interest

claims, guide our analysis.

Blackburn relies on Cowan v. Corley, 814 F.2d 223 (5th Cir.

1987), to support his argument that he has a protected interest in

remaining on the on-call list. In Cowan, the plaintiff operated a

wrecker service in Montgomery County, Texas. The county sheriff

formed the Montgomery County Wrecker Association and issued a

detailed list of requirements for participation. After joining the

association and paying the initiation fees and requisite dues,

21
Cowan lodged a complaint with the sheriff alleging preferential

treatment in the assignment process. Cowan alleged that as a

result of his complaint he was expelled from the association

without warning. He sued the sheriff and others, asserting a

section 1983 due process claim contending that the defendants'

actions deprived him of the opportunity to engage in his calling.

The district court dismissed Cowan's section 1983 claim under Rule

12(b)(6). On appeal, this Court reversed, finding that Cowan had

sufficiently asserted a protected liberty or property interest in

pursuing his livelihood to preclude Rule 12(b)(6) dismissal. Id.

at 228.13

Despite Blackburn's argument that the facts of Cowan and the

instant case are analogous, we find Cowan distinguishable. First,

13
There we noted that the district court had observed:

"that Cowan had not asserted a liberty interest
violation. Although the pleadings claim a property
interest violation, the factual allegations upon which
the categorization is based directly relate to both
property and liberty interests. The essence of Cowan's
complaint is that he has been denied the opportunity to
pursue his livelihood. That is a constitutionally
protected interest." Id. at 227.

Cowan then cited and quoted at length from Phillips v.
Vandygriff, 711 F.2d 1217, 1222 (5th Cir. 1983), which we
consider in detail in the text, infra. Cowan then concludes by
stating:

"As our holding in Phillips makes clear, the right
to engage in the occupation of one's preference is not
absolute. Within the strictures of due process both
property and liberty interests may be constrained.
Ultimately, that may prove to be the situation in the
matter now before us. On that we express no opinion.
But dismissal at this stage on the basis of Fed. R.
Civ. P. 12(b)(6) was error." Id. at 228 (footnote
omitted).

22
the sheriff in Cowan organized and ran the county association. In

the present case, there is no allegation that the sheriff, the

City, or Williams played such a substantial role in the

administration of the association. Second, under the requirements

issued by the sheriff in Cowan, as we construed them, "only members

of the . . . association would be permitted to tow vehicles from

public property," and, in addition, "[a]ll wrecker assignments,

including those made on an owner-preference basis were routed

through the sheriff's office and the association's dispatcher."

Id. at 225 (emphasis added). By contrast, there is no allegation

in the present case that all business had to be routed through the

sheriff and the association. Nothing prevented Blackburn from

responding to specific customer calls for assistance to remove

wrecked vehicles from county or city streets. Cowan, however,

could not under any circumstances tow any vehicles from public

property unless he was a member of the sheriff's association.

Thus, while the association formed and managed by the sheriff in

Cowan established a comprehensive framework for managing virtually

every aspect of the wrecker industry in Montgomery County, it is

not alleged that the Harrison County Wreckers Association is run by

the sheriff or any other government official or that its agenda

goes beyond merely assuring the equitable distribution of official

wrecker business among local operators. Blackburn does not allege

that the revocation of his police radio privileges and his

ineligibility for continued Association membership prevent him from

engaging in nongovernment-generated business. Blackburn is

essentially claiming a right to government referrals; Cowan, as we

23
construed it, asserted a right to do business with private

individuals.

Because the rule in Cowan does not decide this case, we turn

for guidance to the wrecker decisions of other courts. Several

general principles emerge from our review of these cases. Where a

court has found a property interest in remaining on a rotation

list, the plaintiff has alleged a claim of entitlement supported or

created by a formal and settled source such as a state statute or

regulatory scheme. Absent such an entitlement grounded in state

law, courts have not found a protected property interest in

remaining on a wrecker rotation list.

For example, the court in Abercrombie v. City of Catoosa,

Okla., 896 F.2d 1228 (10th Cir. 1990), held that the plaintiff had

a protected property interest in continued wrecker referrals

pursuant to the Oklahoma wrecker statute. Under Oklahoma law, each

police officer was required to maintain a list of licensed wreckers

located in the officer's district. The court found that the

provisions of the Oklahoma wrecker statute requiring the city "to

make wrecker referrals on an equal basis as nearly as possible . .

. created a property interest in wrecker referrals in favor of

the plaintiff." Id. at 1232. Because Blackburn does not allege

that his asserted property interest derives from a Texas statute or

regulation, the holding in Abercrombie does not apply to the

instant case.

In Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992), the

South Carolina Department of Highways and Public Transportation

promulgated extensive regulations governing the operations of

24
wrecking businesses within the state. Under these regulations,

every highway patrol district was required to set up wrecker zones

and maintain wrecker rotation lists for each zone. These

regulations also mandated that the rotation lists be administered

in an even-handed manner to ensure equal distribution of the

wrecker business. After being removed from the rotation list,

plaintiff filed a section 1983 action alleging a deprivation

without due process of his property interest in being on the

rotation list. The Court in Pritchett held that South Carolina's

regulatory regime created a protected property interest in being on

the on-call list rather than a mere unilateral expectation of

receiving government business. Id. at 317. Because the Court in

Pritchett based its holding on the existence of a state regulatory

scheme, Blackburn cannot rely on that case for the general

proposition that a wrecker service has a constitutionally protected

right not to be summarily removed from a rotation list.

Durham v. Jones, 698 F.2d 1179 (11th Cir. 1983), was a section

1983 action challenging the county sheriff's refusal to place the

plaintiff on the wrecker rotation list. For his convenience, the

sheriff maintained a list of wrecker services that he used on a

rotating basis. Under this informal arrangement, the sheriff never

issued any written rules or regulations, nor did he institute a

structured application process. The court in Durham held that the

plaintiff did not have a property or liberty interest in remaining

on the sheriff's informal on-call list; instead, the court stated

that the plaintiff merely had "a unilateral expectation" to receive

business referrals from the sheriff's department. Id. at 1181. In

25
reaching this conclusion, the court stressed that the sheriff's

action did not affect the plaintiff's "right to operate a towing

service." Id.14 Likewise, Defendants' actions have not foreclosed

Blackburn's right to operate a towing service in Harrison County or

his ability to perform services for a nongovernment clientele.

In Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250 (3d

Cir. 1994), plaintiffs brought a section 1983 suit alleging a

deprivation of their due process rights based on the defendants'

preferential administration of a wrecker rotation list. Guidelines

established by the Pennsylvania State Police required an officer in

need of a wrecker to call the nearest available wrecker on a

rotational basis. The court found that the police guidelines

merely articulated a general policy and did not create "an

enforceable contract between the towing services on the list and

the State Police." Id. at 1256. Having found no contractual basis

for a property interest, the court went on to analyze whether the

14
In Gregg v. Lawson, 732 F.Supp. 849 (E.D. Tenn. 1989), the
Court distinguished Durham and found that the plaintiff had a
protected property interest in remaining on the on-call list. In
Gregg, the Tennessee Department of Public Safety issued a general
order to supplement its existing regulations governing the
provision of wrecker services within the state. The plaintiff
argued that the retroactive application of this general order
deprived him of his protected property interest in remaining on
the on-call list. The court held that the plaintiff had a
protected property interest in remaining on the on-call list
because "the regulations in effect prior to the revised general
order clearly create an expectation that a provider will be
called on a regular rotating basis." Id. at 853 (emphasis
added).
Again, the court's finding that the plaintiff had a
protected property interest in remaining on the on-call list was
explicitly premised on the existence of the state regulatory
scheme. Thus, the holding of Gregg does not apply to the facts
of the instant case.

26
parties' mutual understanding based on past practices gave rise to

a property interest. See Perry, 92 S.Ct. at 2699-2700. After

discussing other wrecker decisions such as Pritchett, Abercrombie,

and Gregg, the court stated: "These cases are distinguishable. In

all of them, a state statute or regulation gave a towing operator

a property interest. Here there is no Pennsylvania statute or

regulation governing towing or wrecker services." Piecknick at

1257 (footnote omitted). Similarly, Blackburn has not alleged that

his interest in remaining on the rotation list arises from a Texas

statute or regulation. Piecknick likewise rejected any liberty

claim. Id. at 1259-62.

White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d

Cir.), cert. denied, 114 S.Ct. 185 (1993), presented a situation

where the state police divided a section of highway into zones and

assigned each zone to one wrecker service that would have an

exclusive right to referrals within the zone. Under this system,

the state police dispatcher always called the wrecker assigned to

the zone absent a motorist's request for a specific wrecker. The

plaintiffs' section 1983 action asserted a due process claim based

on the state police's termination of their exclusive towing

assignment in an assigned zone. Emphasizing that this informal

police assignment system was not authorized or governed by any New

York statute or regulation, the court held that "regardless of

their unilateral hopes or expectations, plaintiffs had no

cognizable property interest in continued towing referrals . . .

and the mere termination of their status thus did not deprive them

27
of a due-process-protected interest." Id. at 1062.15

In O'Hare Truck Serv., Inc. v. City of Northlake, 843 F.Supp.

1231 (N.D. Ill. 1994), the plaintiff claimed a property interest in

remaining on the city's rotation list. Surveying the wrecker

opinions, the court found that decisions recognizing a property

interest in remaining on a rotation list all "dealt with formalized

official sources of property rightsSQcreated by the relevant state

law, as Roth teaches must be the case." Id. at 1233 (citation

omitted). Dismissing the due process claim, the court held that

the plaintiff had not alleged a protected property interest because

of the absence of any official or formal source based in state law.

Id.16

In order to prevail on his property interest claim, Blackburn

must show that his interest in remaining on the rotation list is

more than a unilateral expectation of continued use of the police

15
The court also based its holding on the fact that New York
law presumes that a contract for services with no durational
provision is terminable at will. "An interest that state law
permits to be terminated at the whim of another person is not a
property right that is protected by the Due Process Clause."
Patterson, 991 F.2d at 1062.
16
Blackburn also relies on an unpublished district court
opinion, Morris v. McCallie, No. Civ. 4-91-032, 1993 WL 625544
(E.D. Tenn. May 6, 1993). In Morris, the district court held
that the plaintiff had a property interest in remaining on the
wrecker rotation list. Despite the absence of any written
regulations or state regulatory scheme, the court found that a
mutually explicit understanding between the sheriff and members
of the list was sufficient to create a property interest. In
reaching this conclusion, the court stressed that the sheriff's
office had administered the rotation list for twenty-five years
and that the plaintiff himself had been on the rotation list for
some twelve years. In O'Hare Truck Services, the court rejected
the holding of Morris as inconsistent with the other wrecker
cases. 843 F.Supp. at 1233. We agree. We likewise reject
Blackburn's argument based on Morris.

28
radio frequency and receipt of government referrals. Because

Blackburn does not allege that his property interest in remaining

on the rotation list stems from a state statute or regulatory

scheme, a contract, or any other independent source, we find that

Blackburn has failed to allege a property interest protected by the

Due Process Clause of the Fourteenth Amendment.

Blackburn argues that Phillips v. Vandygriff, 711 F.2d 1217

(5th Cir. 1983), and San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697

(5th Cir. 1991), support his argument. Despite Blackburn's efforts

to portray the facts of this case as analogous to Kacal and

Phillips, we find those two cases distinguishable.

Both Phillips and Kacal involve egregious government conduct

in interfering with the plaintiff's pursuit of a private career or

business; they did not involve persons asserting a liberty interest

in a particular type of governmental referral to which they were

not otherwise entitled under state or federal law. In Phillips,

the plaintiff, seeking a management position in the savings and

loan industry, entered an agreement to become an executive of

Sinton Savings and Loan Association (Sinton). During this time,

plaintiff Phillips and several Sinton principals met with defendant

Vandygriff, the Commissioner of the Texas Savings and Loan

Department. Phillips never actually started working at Sinton

because of what ultimately turned out to be severe irregularities

by others at Sinton, including the misuse of funds, which led to

the indictment of two Sinton principals. Phillips continued his

quest for other employment in the industry. According to industry

custom, employers would screen prospective managerial employees

29
with Vandygriff. Although Vandygriff had no reason to suspect

Phillips of any wrongdoing, he informed prospective employers of

Phillips's connection with Sinton and told them that he could not

recommend him for employment, as a result of which Phillips was

unable to find employment anywhere in the industry.

The court in Phillips held there was sufficient evidence that

the defendants had established a de facto state licensing system

under which Phillips was deprived of his constitutionally protected

interest in pursuing his occupation. Id. at 1222. Essentially,

defendant Vandygriff's de facto licensing program amounted to

governmental interference that prevented Phillips from private

employment anywhere in the savings and loan industry. See, e.g.,

Greene v. McElroy, 79 S.Ct. 1400, 1411 (1959) ("[T]he right to hold

specific private employment and to follow a chosen profession free

from unreasonable governmental interference comes within the

`liberty' and `property' concepts of the Fifth Amendment . . . .");

Truax v. Raich, 36 S.Ct. 7, 10 (1915) ("the right to work for a

living in the common occupations of the community is of the very

essence of the personal freedom and opportunity that it was the

purpose of the [Fourteenth] Amendment to secure"). This type of

direct governmental interference with private employers who might

want to develop a business relationship with Phillips is

distinguishable from Defendants' revocation of Blackburn's police

radio frequency privileges and his resulting removal from the

rotation list. Defendants' conduct affected only Blackburn's

ability to receive government referrals.

Blackburn also relies on Kacal to bolster his argument that he

30
had a property interest in remaining on the on-call list. In

Kacal, the plaintiff filed a section 1983 suit alleging that police

harassment of her private customers deprived her of a

constitutionally protected interest in operating a private

business. 928 F.2d 697. Reversing the district court's grant of

summary judgment in favor of defendants, this Court held that

plaintiff's allegations that police harassment caused the failure

of her arcade asserted the deprivation of a protected interest,

thus precluding summary judgment. Id. at 704. Like Phillips,

Kacal involved direct governmental interference with private

persons contemplating a business relationship with the plaintiff.

By contrast, the protected interest Blackburn asserts is only his

unilateral expectation to use the local police radio frequency and

receive local government referrals.

Because there apparently is no Texas or local statute,

ordinance, or regulatory scheme governing the wrecker list operated

by the Harrison County Wrecker's Association, we hold that

Blackburn has failed to allege a property interest in remaining on

the wrecker rotation list. Blackburn's argument is couched in

terms of governmental interference with his property interest in

pursuing an occupation, but upon closer examination, he is

essentially claiming a right to receive a certain class of business

referrals from the local government. Cf. Piecknick at 1259

("[Plaintiff] has no rights as an employee of the state because he

is a mere supplier of services."). We have consistently held that

the mere existence of a governmental program or authority empowered

to grant a particular type of benefit to one such as the plaintiff

31
does not give the plaintiff a property right, protected by the due

process clause, to receive the benefit, absent some legitimate

claim of entitlementSQarising from statute, regulation, contract,

or the likeSQto the benefit. See, e.g., Wilson v. US Dept. of

Agriculture, 991 F.2d 1211, 1216 (5th Cir. 1993); Coghlan v.

Starkey, 845 F.2d 566, 569-70 (5th Cir. 1988); Mahone v. Addicks

Utility District, 836 F.2d 921, 929-931 (5th Cir. 1988). This is

true for a continuation of a benefit. See Coghlan (water service);

Wells (employment). The result, obviously, is not to be changed

merely by employing the label "liberty" instead of "property."

Were that not so, the "legitimate claim of entitlement" requirement

would be entirely meaningless. "The questions . . . are when and

how a person acquires an 'interest in specific benefits' which will

trigger the due process clause." Mahone at 929. Moreover, the

long tradition in our nation has been that, where not affirmatively

restricted by reasonable laws or regulations of general

application, private individuals normally have the right to engage

in private employment or any of the common occupations of life with

or for those private persons who see fit to engage, patronize, or

do business with them; this tradition, however, does not embrace

any assumption of a right to particular government business or

referrals. Blackburn has not alleged that any governmental action

prevents or restricts him from doing business with those private

citizens who wish to avail themselves of his services.

We hold that the facts alleged here do not give rise to any

liberty or property interest protected by the Fourteenth Amendment.

Durham. Accordingly, the district court did not err in dismissing

32
Blackburn's due process claim against all three defendants under

Fed. R. Civ. P. 12(b)(6).

IV. Pendent (or Supplemental) State Law Claims

The district court dismissed Blackburn's pendent state law

claims, explaining that the "general rule is to dismiss state

claims when the federal claims to which they are pendent are

dismissed." Parker & Parsley Petroleum Co. v. Dresser Indus., 972

F.2d 580, 585 (5th Cir. 1992). Because we reverse the district

court's dismissal of Blackburn's First Amendment claim against

Williams and the City, we must also reverse and remand the district

court's dismissal of the pendent (or supplemental) state law claims

against Williams and the City.

Conclusion

For the foregoing reasons, the judgment of the district court

is AFFIRMED in part and REVERSED in part, and the cause is

REMANDED.

33