United States Court of Appeals
Fifth Circuit
F I L E D
Revised July 23, 2003
July 2, 2003
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 00-40731
RANDALL COGGIN,
Plaintiff-Appellee,
VERSUS
LONGVIEW INDEPENDENT SCHOOL DISTRICT; ET AL,
Defendants,
LONGVIEW INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, and CLEMENT, Circuit Judges.*
JAMES L. DENNIS, Circuit Judge:
Randall Coggin brought this action under 42 U.S.C. § 1983
*
Judge Prado, who joined our court subsequent to en banc oral
argument, did not participate in this decision.
1
against his former employer, a Texas independent school district,
because its board of trustees terminated his employment contract
without any kind of a hearing. After a bench trial, the district
court rendered judgment in favor of Coggin. A divided panel of our
court affirmed.1 A majority of the judges in active service voted
to rehear the case en banc.2 We now affirm the judgment of the
district court.
I. Statutory Procedure for Termination of
School Board Employees’ Term Contracts
Under the Texas Education Code, a school board has the power
to terminate a term contract and discharge a teacher at any time
“for good cause as determined by the board.”3 Prior to terminating
a term contract, however, the board must give the teacher notice of
its proposed action.4 If the teacher desires a pre-termination
hearing under state law, he must file a written request with the
state commissioner of education (“Commissioner”) within 15 days of
receiving notice of his proposed termination.5 Within 10 business
1
Coggin v. Longview Indep. Sch. Dist., 289 F.3d 326 (5th Cir.
2002).
2
Coggin v. Longview Indep. Sch. Dist., 309 F.3d 307 (5th Cir.
2002).
3
Tex. Educ. Code Ann. § 21.211(a)(1) (Vernon 1996). Under Texas
law, each independent school district is considered a municipal
governmental entity, id. § 11.151, and is governed by a board of
trustees (i.e., a school board), id. § 11.051(a).
4
Id. §§ 21.251(a)(1), 21.253.
5
Id. § 21.253. The Commissioner is appointed by the governor
with the advice and consent of the state senate, id. § 7.051, and
2
days of receiving a timely request for a hearing, the Commissioner
must assign a hearing examiner to conduct a hearing in that
particular case.6 Not later than 45 days after the Commissioner
receives a request for a hearing, the hearing examiner shall
complete the hearing and recommend findings of fact, conclusions of
law, and, if appropriate, the granting of relief.7 The school
board, not the Commissioner, is taxed with the costs of the hearing
examiner, the shorthand reporter, and the production of a hearing
transcript.8
After receiving the examiner’s recommendation and the record
of the hearing, the school board or its designated subcommittee
must consider them and allow each party to present an oral argument
to the board or subcommittee.9 Within 10 days of that meeting, the
board must announce a decision that includes findings of fact and
conclusions of law and that may include a grant of relief.10 The
board may adopt, reject, or change the hearing examiner’s
conclusions of law or proposal for granting relief, and it may
reject or change the hearing examiner’s finding of facts not
heads the Texas Education Agency, id. §§ 7.002, 7.055.
6
Id. § 21.254(c).
7
Id. § 21.257.
8
Id. § 21.255(e).
9
Id. § 21.258.
10
Id. § 21.259.
3
supported by substantial evidence in the record.11
Section 7.057(d) of the Texas Education Code provides that
“[a] person aggrieved by an action of the agency or decision of the
Commissioner may appeal to a district court in Travis County.”12
This appeal must be made by serving the Commissioner as in a civil
suit, and the court shall determine all issues of law and fact at
trial.13
II. Factual and Procedural Background
Randall Coggin worked for the Longview Independent School
District (“LISD”) for more than 30 years. From 1983 until his
discharge on September 13, 1999, Coggin supervised the LISD Career
and Technology Education department. At the time of his discharge,
Coggin was employed under a two-year term contract spanning the
1998-1999 and 1999-2000 academic years. Before receiving notice of
his proposed termination, his performance appraisals were generally
complimentary. On August 12, 1999, however, Coggin received a
letter from the LISD’s new superintendent notifying him that the
school board proposed to terminate his employment contract for
engaging in various alleged improprieties, including sexually
harassing female subordinates, using LISD resources for his
personal benefit, impeding the LISD’s investigation of his
11
Id.
12
Id. § 7.057(d)
13
Id.
4
behavior, and falsifying asbestos records. On August 24, Coggin
deposited copies of his written request for a hearing with the U.S.
Postal Service for delivery via certified mail, properly stamped
and addressed to the Commissioner and the school board. The school
board received its copy of Coggin’s request on August 26, but the
Commissioner did not receive the request until August 30. Because
the Commissioner mistakenly thought that Coggin’s request must have
been received, rather than filed, by August 27, 1999, he refused to
appoint a hearing examiner. On September 2, 1999, the Commissioner
mailed copies of a letter addressed to both Coggin and the LISD’s
counsel stating that (1) the Commissioner had received Coggin’s
written request for the appointment of a hearing examiner; (2) the
request was dated and postmarked before the August 27 deadline for
filing; (3) the Commissioner received the request on the third day
following the deadline; but (4) the Commissioner would not appoint
a hearing examiner because Coggin’s request was received after the
deadline. After Coggin received the Commissioner’s September 2
letter, Coggin’s attorney and the Commissioner engaged in a “flurry
of correspondence” regarding the timeliness of Coggin’s request for
a hearing, but the Commissioner declined to reconsider his refusal
to appoint a hearing examiner.14
On September 13, 1999, the LISD school board, without giving
further notice to Coggin or any kind of a hearing, adopted a
14
District Court’s Memorandum Opinion at 10.
5
resolution discharging Coggin as an employee of the LISD. The LISD
concedes that it was aware of the Commissioner’s refusal to appoint
a hearing examiner prior to the board’s action. Thus, as the
district court found, “[w]hen it terminated Coggin’s contract, the
LISD board had actual knowledge that Coggin had requested a hearing
on the termination of his contract, the date on which he had
requested it, and that no hearing of any kind had been held.”15
On November 12, 1999, Coggin brought suit against the LISD,
the Texas Education Agency (“TEA”), and the Commissioner under 42
U.S.C. § 1983 for depriving him of his property without due process
of law. After the district court expressed its opinion that the
TEA and the Commissioner had a valid Eleventh Amendment defense,
Coggin dismissed his § 1983 claim against them, and the case
proceeded solely against the LISD. Following a bench trial, the
district court concluded that (1) Coggin timely filed his request
for a hearing as required by state law; (2) the board had notice
that Coggin had not received a hearing despite his timely request;
(3) the board deprived Coggin of his property without due process
when it terminated his employment contract without any kind of a
hearing; (4) the LISD failed to prove that Coggin had engaged in
the alleged misconduct and therefore had no cause to terminate his
employment contract; and (5) Coggin was entitled to $215,894 in
damages and attorney’s fees. The LISD appealed.
15
Id. at 10-11.
6
III. The LISD’s Action Was the Sole Cause of
The Violation of Coggin’s Right to Due Process
On appeal the LISD does not dispute that its termination of
Coggin’s employment in the middle of his two-year term employment
contract deprived him of a constitutionally protected property
interest in continued employment, or that Coggin was entitled to
constitutional due process in conjunction with the proposed
termination of that employment.16 Nor does it challenge or point
to any error in the district court’s determination that Coggin
timely filed his request for a hearing.17 LISD argues, instead,
that any deprivation of Coggin’s right to due process of law was
caused by the Commissioner’s refusal to appoint a hearing examiner,
not by the school board’s termination of his employment contract
without a hearing: “The gravamen of this dispute is a question of
causation.”18 Thus, the LISD contends that the Commissioner’s
action, to the exclusion of its own, should be considered the sole
16
Defendant’s Supp. En Banc Brief at 15.
17
Indeed, the LISD insists that the matter of the timeliness of
Coggin’s request for the appointment of a hearing examiner is
irrelevant to its appeal:
Regardless of whether Coggin failed timely to file a request
for hearing under those procedures or the Commissioner erred
as a matter of state law in interpreting the TEA filing
requirements, any such dispute (1) was not a dispute involving
the School District, (2) was not caused by LISD, and (3) was
waived when Coggin failed to pursue appropriate relief in
court against TEA and the Commissioner.
Id. at 22.
18
Id. at 9.
7
cause of the deprivation of due process and, therefore, that it is
not responsible for the violation.
The LISD’s irrevocable discharge of Coggin without a hearing
just 4 business days after Coggin’s receipt of the Commissioner’s
notice of refusal was the sole cause of the violation of Coggin’s
right to due process of law.19 The LISD argues that the
Commissioner’s erroneous refusal to appoint a hearing examiner was
the cause of the violation because Coggin waived his rights by not
appealing the Commissioner’s decision through the filing of a civil
suit in state district court as provided for by § 7.057(d) of the
Texas Education Code. We disagree.
Section 7.057(d) does not prescribe a time limit within which
a person aggrieved by an action of the Commissioner must file an
appeal in the district court. The Texas Administrative Procedures
Act, however, provides that an aggrieved person is allowed 30 days
to appeal from the decision of an administrative agency.20 Thus,
19
The Commissioner mailed his erroneous decision to Coggin and
LISD on Thursday, September 2, 1999. Because of the intervening
Labor Day on September 6, 1999 and the two days required for
delivery of other mail in this case, Coggin could not have received
the Commissioner’s September 2 letter until Tuesday, September 7,
1999. Therefore, the LISD discharged Coggin only 4 business days
after he had received the Commissioner’s September 2 letter.
20
Tex. Gov’t Code Ann. § 2001.176 (Vernon 2000) (“A person
initiates judicial review in a contested case by filing a petition
not later than the 30th day after the date on which the decision
that is the subject of complaint is final and appealable.”). A
“contested case” means “a proceeding . . . in which the legal
rights, duties, or privileges of a party are to be determined by a
state agency after an opportunity for adjudicative hearing.” Id.
§ 2001.003(1). The Texas courts have construed this definition to
8
Coggin was afforded 30 days by the Texas procedure to file his
appeal in district court contesting the Commissioner’s refusal to
assign a hearing examiner.21 But the LISD’s discharge of Coggin
just 4 business days after his receipt of the Commissioner’s notice
of refusal prematurely cut off Coggin’s right to appeal under §
7.057(d) and unreasonably foreclosed the possibility of a pre-
termination due process hearing in his case.
Consequently, we conclude that Coggin did not waive his
rights, and that the LISD’s action of peremptorily discharging
Coggin without a hearing just 4 business days after his receipt of
the Commissioner’s notice of refusal was the sole cause of the
violation of his right to due process of law. The Commissioner’s
erroneous decision was not a cause of the violation because, if the
LISD had not peremptorily discharged Coggin, that error could have
include situations in which a state agency adjudicates a party’s
legal rights in an exercise of quasi-judicial authority, as opposed
to making such an adjudication in an exercise of rule making
authority. See WBD Oil & Gas Co. v. Railroad Comm’n of Tex., 35
S.W.3d 34, 44 (Tex. App. 2001); Ramirez v. Texas State Bd. of Med.
Exam’rs., 927 S.W.2d 770, 772 (Tex. App. 1996); Best & Co. v. Texas
State Bd. of Plumbing Exam’rs., 927 S.W.2d 306, 309 & n.1 (Tex.
App. 1996); Big D Bamboo, Inc. v. Texas, 567 S.W.2d 915, 918 (Tex.
App. 1978).
21
Even if the Administrative Procedures Act did not apply,
“Texas law is firmly established that, when the statute fails to
prescribe such a time limit, an appeal must be taken within a
reasonable time.” Westheimer I.S.D. v. Brockette, 567 S.W.2d 780,
789-90 (Tex. 1978) (applying § 11.13(c), the predecessor to
§ 7.057(d), and citing Railroad Comm’n v. Aluminum Co. of Am., 380
S.W.2d 599 (Tex. 1964); Board of Water Eng’rs v. Colorado Mun.
Water Dist., 254 S.W.2d 369 (Tex. 1953); Midas Oil Co. v. Stanolind
Oil & Gas Co., 179 S.W.2d 243 (Tex. 1944); and Harkness v.
Hutcherson, 38 S.W. 1120 (Tex. 1897)).
9
been corrected on appeal by the state district court’s order that
the Commissioner assign a hearing examiner in accordance with the
Texas Education Code procedure.
IV. The LISD Was the Responsible State Actor
This court’s standard analysis for determining who is the
state actor responsible for a constitutional violation in an action
arising under § 1983 reaches the same result. In Bush v. Viterna,
we identified three key questions that guide our analysis of causes
of action arising under § 1983:
[T]he first question must be whether a federally secured
right has been affected. . . . The second question that
must be asked is whether the alleged deprivation of a
federal right has been accomplished by state
action. . . . After one has found a deprivation of a
federally secured right and has determined that it
resulted from state action, one must ask a third
question: Who is the state actor responsible for this
violation?22
In this case, because Coggin was deprived of his protected
employment right without the due process hearing to which he was
entitled and which he did not waive, and because that deprivation
involved two state actors, the only question presented is who is
the state actor responsible for the violation—the LISD or the
Commissioner.23 This inquiry depends on an analysis of state law.24
22
Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986).
23
See McMillian v. Monroe County, Alabama, 520 U.S. 781, 784-85
(1997) (“A court’s task is to ‘identify those officials or
governmental bodies who speak with final policymaking authority for
the local government actor concerning the action alleged to have
caused the particular constitutional or statutory violation at
issue.’” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
10
That is, in order to identify the responsible state actor, we must
determine how state law distributes government functions.25 But we
do not apply state law; rather, we “simply [use] state law to
identify the persons responsible for an identified civil rights
violation.”26
Texas law assigns to the school board, as the governing body
of the school district, exclusive policy making authority with
regard to employment decisions. The state law is clear that the
school board, alone, may terminate a term contract and discharge an
employee upon a finding of good cause.27 Only the school board can
determine whether such cause exists and whether an employee should
737 (1989))).
24
Id. at 786; Jett, 491 U.S. at 737 (“[W]hether a particular
official has ‘final policymaking authority’ is a question of state
law” (internal quotation omitted)); Pembaur v. Cincinnati, 475 U.S.
469, 483 (1986) (“[W]hether an official had final policy making
authority is a question of state law.”); Bush, 795 F.2d at 1209
(stating that the identify of the responsible state actor “will
usually be answered exclusively by reference to state law and
practice”).
25
McMillian, 520 U.S. at 786 (“[O]ur understanding of the actual
function of a governmental official, in a particular area, will
necessarily be dependent on the definition of the official’s
functions under relevant state law.”); Regents of Univ. of Cal. v.
Doe, 519 U.S. 425, 429 n.5 (1997) (“[The] federal question can be
answered only after considering the provisions of state law that
define the agency’s character.”).
26
Bush, 795 F.2d at 1209.
27
Tex. Educ. Code Ann. § 21.211(a)(1) (“The board of trustees
may terminate term contract and discharge a teacher at any time for
. . . good cause as determined by the board . . . .”).
11
be discharged as a result.28 Under the explicit terms of the
statute, then, the LISD was the final policy and decision maker
with respect to Coggin’s discharge.
By comparison, under Texas law the Commissioner is not vested
with any final policymaking authority concerning either the
determination of cause to discharge or the actual discharge of
school district employees. The Commissioner’s role of appointing
a hearing examiner upon the timely filing of a request by an
employee is ministerial and does not involve or require any
policymaking. Consequently, there was no policy authored by the
Commissioner that caused the particular constitutional violation at
issue. In fact, there was no action taken by the Commissioner that
deprived Coggin of his property without due process of law. The
Commissioner has no authority to discharge a school district
employee or to require the school board to terminate an employment
contract. Indeed, the statute even requires that the school board,
not the Commissioner, bear the costs of the hearing examiner, the
shorthand reporter, and the production of a hearing transcript. In
short, the Commissioner could not have been responsible for causing
the termination of Coggin’s employment contract for cause without
a pre-termination hearing because he could not determine cause or
discharge Coggin.
Consequently, because the school board was the final arbiter
28
Id. § 21.259.
12
of employment disputes under Texas law, it was exclusively
responsible for hearing Coggin’s arguments against discharge before
resolving the questions of cause and discharge.29 Contrary to the
LISD’s arguments, Texas law has not removed or separated from the
school board the function of providing pretermination due process
to its employees.30 Under well-established federal law, the
constitutional minimums for due process require that the final
decision maker must hear and consider the employee’s story before
29
The Texas Supreme Court recognized this seminal fact in
Montgomery Independent School District v. Davis, when it wrote in
the context of a contract renewal case, “the Board retains the
authority to make the ultimate decision of whether to renew a
teacher’s contract.” 34 S.W.3d 559, 565 (Tex. 2000). Likewise,
§ 21.211(a)(1) makes clear that the board retains the exclusive
authority to determine whether to terminate a teacher’s contract
for cause.
30
The LISD, echoing the dissent to the panel opinion, asserts
that Texas law separates the responsibility for providing a due
process hearing from the responsibility for making termination
decisions. The text of the Texas statutory scheme does not support
this assertion. It is true that under the statutory scheme the
function of appointing a hearing examiner has been given to the
Commissioner, Tex. Educ. Code Ann. § 21.254, and that the function
of gathering evidence, making findings of facts, and recommending
conclusions of law has been given to an appointed hearing examiner,
id. § 21.257. But the school board retains the exclusive duty to
“consider the recommendation and record of the hearing examiner”
and “shall allow each party to present an oral argument” before
rendering its decision on whether there is cause to terminate and
whether to discharge an employee. Id. § 21.258. In reaching such
a decision, the school board has authority to make its own
conclusions of law, including the crucial determination of whether
there is cause to discharge. See id. § 21.259(b) (The school board
“may adopt, reject, or change the hearing examiner’s . . .
conclusions of law.”). It “may reject or change a finding of fact
made by the hearing examiner” that is not supported by “substantial
evidence.” Id. § 21.259(c).
13
deciding whether to discharge the employee.31 The purpose of this
is self-evident. It is to provide a “meaningful opportunity to
invoke the discretion of the decisionmaker . . . before the
termination takes effect.”32 The Texas law complies with the
federal due process requirement by providing that the school board,
as the exclusive decision maker with regard to employment
termination decisions, “shall allow each party to present an oral
argument to the board” before the board determines cause or
discharges the employee.33 Thus, under the responsible state actor
analysis we conclude that the LISD is the state actor responsible
for the violation in this case.
V. Answer to Amicus Argument
Contrary to the argument of the LISD’s amicus, the Texas
31
See, e.g., Zinermon v. Burch, 494 U.S. 113, 135 (1990)
(“Because petitioners had state authority to deprive persons of
liberty, the Constitution imposed on them the State’s concomitant
duty to see that no deprivation occur without adequate procedural
protections.”).
32
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 & n.8
(1985) (citing Goss v. Lopez, 419 U.S. 565, 583-84 (1975), and
Gagnon v. Scarpelli, 411 U.S. 778, 784-86 (1973)). Both the
employer and the employee benefit from this opportunity, for it
ensures that the decision maker reaches an accurate decision. Id.
It thus protects persons “not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property.”
Carey v. Piphus, 435 U.S. 247, 259 (1978).
33
Tex. Educ. Code Ann. § 21.258(b); see also Londoner v. Denver,
210 U.S. 373, 386 (1908) (“[A] hearing in its very essence, demands
that he who is entitled to it shall have the right to support his
allegations by argument however brief, and, if need be, by proof,
however informal.”), cited in Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 16 n.17 (1978).
14
Association of School Boards Legal Assistance Fund, this decision
in no way subjects a school board to liability for acts other than
its own. If the Commissioner does not abide the prescribed scheme,
Texas gives an aggrieved school employee the right to appeal to a
state district court, thereby providing constitutional due
process.34 If the mandated procedure is followed, an employee will
also have been afforded constitutional due process when a school
board makes its final termination decision. When a school board
disregards the statutory scheme, here depriving the employee of his
right to appeal, however, it may subject itself to liability, not
for the act of another but for its own act. To the point, had the
school board given Coggin the statutorily allotted time to appeal
the Commissioner’s decision, there would have been no denial of due
process.35
VI. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
34
See Tex. Educ. Code Ann. § 7.057(d).
35
Judge Jones mistakenly claims that the majority decides an
issue that was not properly before the en banc court. Whether the
LISD or the Commissioner caused the due process violation has been
the ultimate, concrete issue throughout the long history of this
case. Accordingly, in answering the causation question, the
opinion does nothing more than properly exercise the court’s duty
“to enunciate the law on the record facts.” See Empire Life Ins.
Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972);
see also Phillips v. Monroe County, Miss., 311 F.3d 369, 376 (5th
Cir. 2002) (“We may affirm the district court’s decision on any
grounds supported by the record.”).
15
AFFIRMED.
16
E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, BARKSDALE,
EMILIO M. GARZA, and CLEMENT, Circuit Judges, dissenting:
I could agree with the majority’s theory of liability and
outcome if its assumptions about the operation of state law had any
basis in law or fact. Because those assumptions indisputably have
no support, I cannot join the majority’s opinion.
Throughout this litigation, the theory supporting LISD’s
liability for a constitutional violation has been marked by an
inventive and evasive character whenever cornered by law or fact.
The theory now expressed in the majority opinion for the first
time, with no briefing from any party, is that Coggin was denied
constitutional due process thus: LISD’s termination of Coggin
caused him to lose his statutory right to appeal the decision of
the TEA Commissioner and thus caused a denial of procedural due
process. If only that were true, I would join the majority.
The majority’s opinion acknowledges that due process in this
case is satisfied so long as Coggin had the right under state law
to appeal the Commissioner’s decision. “If the Commissioner does
not abide the prescribed scheme, Texas gives an aggrieved school
employee the right to appeal to a state district court, thereby
providing constitutional due process.” (Majority Op. at 15).
“Section 7.057(d) of the Texas Education Code provides that ‘[a]
person aggrieved by an action of the agency or decision of the
Commissioner may appeal to a district court in Travis County.’ This
appeal must be made by serving the Commissioner as in a civil suit,
17
and the court shall determine all issues of law and fact at trial.”
(Majority Op. at 4)(footnote omitted)(emphasis added).
However, the majority assumes that “[t]he LISD’s irrevocable
discharge of Coggin without a hearing just 4 business days after
Coggin’s receipt of the Commissioner’s notice of refusal was the
sole cause of the violation of Coggin’s right to due process of
law.” (Majority Op. at 8). “[T]he LISD’s discharge of Coggin just
4 business days after his receipt of the Commissioner’s notice of
refusal prematurely cut off Coggin’s right to appeal under §
7.057(d) . . . .” (Majority Op. at 9). “The Commissioner’s
erroneous decision was not a cause of the violation because, if the
LISD had not peremptorily discharged Coggin, that error could have
been corrected on appeal . . . .” (Majority Op. at 9). Thus, the
majority concludes that “had the school board given Coggin the
statutorily allotted time to appeal the Commissioner’s decision,
there would have been no denial of due process.” (Majority Op. at
15).
Yet the majority fails to explain how the termination of
Coggin denied him the right to appeal his case to the Travis County
district court. It is of course plain that the termination did not
cause Coggin physically or procedurally to lose his right to appeal
the Commission decision. The statute was still there, the district
court in Travis County was still there, some 26 days - by the
majority’s calculation - remained in his appeal period, and Coggin
still had free will. The majority seems to assume, without
18
expressly saying so, that his termination made any appeal of the
Commissioner’s decision moot. Of course, neither the majority, nor
I, nor any other judge on this court, nor any party, knows whether
this assumption contains the slightest degree of correctness in
fact or law. It is only an assumption tailored from whole cloth,
for a specific fit. No brief has been filed raising the point. No
argument is made by the majority that the statute supports such an
assumption. No argument is made by the majority that case law
supports any such assumption. The majority simply offers the
theory as so many inspired words.
On the other hand, a more reasonable assumption would posit
that had Coggin exercised his right to appeal – a right that no one
has denied existed – a complete remedy would have been available.
It is easily assumed that LISD would have been a proper party to
that appeal. If on appeal the court had concluded that the
Commissioner erred in rejecting Coggin’s petition, it is a
plausible assumption that the state court would have exercised its
equitable powers and further would have held Coggin’s termination
a nullity under state law and ordered him reinstated pending the
outcome of the TEA hearing, thus providing him a whole remedy (“the
[Travis County district] court shall try all issues of law and fact
. . . .” § 7.057 (emphasis added)). Assuming, however, the Travis
County district court determined it had jurisdiction only to
address the error of the TEA Commissioner, another scenario is
equally plausible, plainly demonstrating that whatever the status
19
of his appeal might have been, it was not moot. If Coggin had
exercised his right to appeal – a right, I repeat, no one denied
existed – and if Coggin had chosen to appeal only the
Commissioner’s decision, he could have taken that judgment to the
appropriate state court and obtained injunctive relief reinstating
him pending the outcome of the TEA hearing he was denied. Both
these scenarios are assumptions enjoying more reasonable
speculative bases than the majority facilely adopts to support the
conclusion necessary for the result it thinks is appropriate.
In short, the assumption of the majority that his termination
caused the denial of due process by rendering his right to appeal
moot is speculation of an unrestrained sort, which indeed seems
contrary to reason and logic.
I could agree with the majority opinion if anywhere in the
record it were evident that the plaintiff had met his burden of
proof to support the majority’s new-found, unbriefed, unargued
theory that his termination denied him an effective appeal of the
Commissioner’s decision. But there is nothing in the record – or
the law – to support the majority’s theory – and the majority
apparently does not argue that there is. Such is the consequence
of attempting to develop arguments never presented by anyone at any
time in order to tailor an outcome for a favored party.
I can appreciate the equities that drive the majority to try
to fashion some relief in this case. During the pretermination
process as provided by the Texas statute, Mr. Coggin got entangled
20
in errors and alleged errors, which he did not appeal. However,
because both Coggin and the majority have failed to carry their
respective burdens of proof and persuasion, to explain how his
termination in fact eviscerated his right to appeal, the question
of causation remains unanswered, I am unable to join in the
opinion, and I respectfully dissent.36 Finally, given what I regard
as the complete failure of the majority to confect some credible
constitutional analysis for a violation of due process, I join the
dissents of Judges Jones and Garza.
36
I do note that the majority opinion does not challenge or deny
the correctness of a single assertion made in this dissent. The
majority would thus seem to admit there is no record or legal
support for its theory of liability, thereby calling into question
not only footnote 35 of its opinion, but its entire opinion as
well.
21
EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH, BARKSDALE,
EMILIO M. GARZA, and CLEMENT, Circuit Judges, dissenting:
I fully concur in Judge Emilio Garza’s excellent dissent.
I am compelled by precedent, however, to comment on the majority’s
decision to base its opinion on a theory never raised by the
parties in this case; namely, the theory that LISD fired Coggin too
quickly and failed to give Coggin proper time to seek state court
judicial review of the Commissioner’s decision not to allow a
hearing. See Judge Emilio Garza’s Dissent at 7.
The problem has been colorfully, if hyperbolically,
described by our brethren on the Seventh Circuit: “Judges are not
like pigs, hunting for truffles buried in briefs.”37 United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Today, the majority,
unable to find a truffle in the briefs, has simply created an issue
never raised by the parties either before the district court38 or
37
“It is reasonable to assume that just as a district court is
not required to ‘scour the record looking for factual disputes,’ it
is not required to scour the party’s various submissions to piece
together appropriate arguments. A court need not make the lawyer's
case.” Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.
1995) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994)) (internal citations omitted).
38
The district court specifically noted that “[t]he parties have
cited no law that allows for review of the Commissioner’s failure
to assign a hearing examiner.” Memorandum Opinion, p.17, Case No.
6:99-CV-658, (E.D. Tex. May 16, 2000). The district court further
stated the parties did not raise or suggest the “relevance or
applicability of Tex. Educ. Code Ann. § 7.057," upon which the
22
the panel of this court which first heard the case,39 or in the
supplemental briefs filed prior to en banc rehearing.40 Like some
of my former and current colleagues on this court, I find such
behavior by an en banc court to demonstrate “a complete lack of
appropriate judicial self-restraint.” United States v. Lyons, 731
F.2d 243, 253 (5th Cir. 1984)(en banc)(Rubin and Williams, JJ.
concurring in part and dissenting in part, joined by Politz, Tate,
and Higginbotham, JJ.).
“It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon below.”41
majority relies. Id. at 17 n.14. Thus, the court refused to
consider it. Id.
39
None of the parties’ original briefs even refers to Tex. Educ.
Code Ann. § 7.057.
40
LISD’s en banc brief, in a footnote, refers to and quotes from
Judge Emilio Garza’s panel dissent in which he suggests that Coggin
could have filed suit in state district court in Travis County
against the Commissioner under § 7.057(d). But LISD makes no
attempt to present a reasoned argument that this was relevant to,
or determinative of, the present case. Accordingly, any such
argument was abandoned for being inadequately briefed. See Fed. R.
App. P. 28(a)(5); L&A Contracting Co. v. S. Concrete Servs., Inc.,
17 F.3d 106, 113 (5th Cir. 1994); Dardar v. Lafourche Realty Co.,
985 F.2d 824, 831 (5th Cir. 1993). Moreover, a citation in LISD’s
brief, without more, could hardly furnish the basis for this court
to grant relief to Coggin, who never even cited, much less argued,
the provision.
41
“Although we can affirm a summary judgment on grounds not
relied on by the district court, those grounds must at least have
been proposed or asserted in that court by the movant.” Johnson v.
Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997); see also Breaux v.
Dilsaver, 254 F.3d 533, 538 (5th Cir. 2001) (“Although this court
may decide a case on any ground that was presented to the trial
court, we are not required to do so.”); Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (“This Court will not
23
Singleton v. Wulff, 428 U.S. 106, 120 (1976); Conley v. Bd. of Trs.
of Grenada County Hosp., 707 F.2d 175, 178 (5th Cir. 1983) (“As a
general principle of appellate review, we refuse to consider issues
not raised below.”). We deviate from this rule only in
extraordinary circumstances. Leverette, 183 F.3d at 342.
“Extraordinary circumstances exist when the issue involved is a
pure question of law and a miscarriage of justice would result from
our failure to consider it.” N. Alamo Water Supply Corp., 90 F.3d
at 916. As this court has explained, such circumstances exist when
“the asserted error is so obvious that the failure to consider it
would result in a miscarriage of justice.” Conley, 707 F.2d at
178. Given the closeness of this case, which is readily apparent
from the split among the members of this court, one cannot say that
the resolution of this newly raised argument is obvious.
The majority’s decision to wander down the road they have
chosen is particularly regrettable in light of the en banc court’s
consider an issue that a party fails to raise in the district court
absent extraordinary circumstances.”); Forbush v. J.C. Penney Co.,
98 F.3d 817, 822 (5th Cir. 1996) (“Furthermore, the Court will not
allow a party to raise an issue for the first time on appeal merely
because a party believes that he might prevail if given the
opportunity to try a case again on a different theory.”); N. Alamo
Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916 (5th
Cir. 1996) (“We will not consider an issue that a party fails to
raise in the district court, absent extraordinary circumstances.”);
Mo. Pac. R.R. v. Harbison-Fischer Mfg. Co., 26 F.3d 531, 538 (5th
Cir. 1994) ("[W]e can affirm the district court on the alternate
grounds asserted below."); FDIC v. Laguarta, 939 F.2d 1231, 1240
(5th Cir. 1991) (refusing to affirm summary judgment on grounds
"neither raised below ... nor even raised sua sponte by the
district court").
24
nearly-unanimous statements of just five years ago in United States
v. Brace, 145 F.3d 247 (5th Cir. 1998)(en banc). In light of the
majority’s dalliance, it is worthwhile to restate what this court
said in Brace:
It goes without saying that we are a court of review, not
of original error. Restated, we review only those issues
presented to us; we do not craft new issues or otherwise
search for them in the record. E.g., United States v.
Johnson, 718 F.2d 1317, 1325 n.23 (5th Cir. 1983) (en
banc) (we will not review improper jury instruction if
neither raised in trial court nor claimed on appeal to be
error). It is for the parties, those who have a stake in
the litigation, to decide which issues they want to
pursue, at trial and on appeal. Diverse reasons underlie
the choices the parties make. Likewise, other obvious
factors come into play, such as judicial efficiency and
economy, fairness to the courts and the parties, and the
public interest in litigation coming to an end after the
parties have had their fair day in court. Cf. United
States v. Atkinson, 297 U.S. 157, 159, 56 S. Ct. 391, 392
80 L. Ed. 555 (1936); United States v. Olano, 507 U.S.
725, 731, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508
(1993); United States v. Calverley, 37 F.3d 160, 162 (5th
Cir. 1994) (en banc), cert. denied, 513 U.S. 1196, 115 S.
Ct. 1266, 131 L. Ed. 2d 145 (1995). In short, it is not
for us to decide which issues should be presented, or to
otherwise try the case for the parties.
Our role is indeed limited. Concerning our not acting as
legislators, Justice Cardozo admonished that a judge "is
not a knight-errant, roaming at will in pursuit of his
own ideal of beauty or of goodness". Cardozo, The Nature
of the Judicial Process 141 (1921). Needless to say, the
same is true regarding our not addressing issues not
presented to us.
Brace, 145 F.3d at 255-56. The same principle was endorsed
unanimously by the en banc court earlier. See Thomas v. Capital
Sec. Servs., Inc., 836 F.2d 866, 884 n.25 (5th Cir. 1988) (en banc)
(“As an appellate court, we decline to entertain issues not raised
in, or decided by district courts.”). The majority have failed
25
even to cite, much less distinguish or otherwise explain their
departure from en banc precedents. They advance no authority to
support their novel approach to the judicial craft.
Further, as Justice Blackmun wrote on behalf of a
unanimous Supreme Court, the rule that appellate courts not
consider issues that the parties failed to present to the lower
court:
is ‘essential in order that parties may have the
opportunity to offer all the evidence they believe
relevant to the issues... [and] in order that litigants
may not be surprised on appeal by final decision there of
issues upon which they have had no opportunity to
introduce evidence.’ We have no idea what evidence, if
any, petitioner would, or could, offer in defense of this
statute, but this is only because petitioner has had no
opportunity to proffer such evidence. Moreover, even
assuming that there is no such evidence, petitioner
should have the opportunity to present whatever legal
arguments he may have in defense of the statute.
Singleton, 428 U.S. at 120 (quoting Hormel v. Helvering, 312 U.S.
552, 556 (1941)) (emphasis added).
The dangers of deciding issues raised by the court sua
sponte are well-illustrated by the proceedings before the Eleventh
Circuit in Stewart v. Dugger, 847 F.2d 1486 (11th Cir. 1988)
(Stewart I), vacated by 877 F.2d 851 (11th Cir. 1989) (Stewart II).
In Stewart I, a habeas petitioner brought a claim for relief based
on allegedly inappropriate comments made during voir dire by the
trial court in violation of Caldwell v. Mississippi, 472 U.S. 320
(1985). Stewart I, 847 F.2d at 1489. The court denied relief on
26
these grounds. The court, however, did not stop there. The panel,
in its subsequent opinion, characterized what happened next:
While reviewing the Caldwell claim raised by Stewart and
addressed above, this court noticed other occasions where
defense counsel, the prosecutor and the trial judge
touched on functions of the jury which might have been
asserted as implicating Caldwell in a manner different
from that which had been suggested by Stewart. The court
sua sponte requested supplemental briefing and then
addressed the merits of some, but not all, of these
other, potential Caldwell issues. See Stewart v. Dugger,
847 F.2d 1486, 1489-1493. (11th Cir. 1988).
Stewart II, 877 F.2d at 854.
The court in Stewart II accordingly reconsidered its
decision in Stewart I to address certain Caldwell issues sua sponte
and upon reconsideration, struck that part of the discussion in
Stewart I. Id. at 852 (“The court, sua sponte, reconsiders this
case insofar as our previous opinion addressed an issue which had
been raised by the court sua sponte and unadvisedly. For the
reasons stated, one section of our previous opinion . . . is
stricken and a statement of the reasons for its being stricken is
inserted.”). The court stated that it “unadvisedly” reached the
issue because the Caldwell issues raised by the court were
procedurally barred. Stewart II, 877 F.2d at 854-55. The court
went on to note that the respondent, in its supplemental brief
filed at the instruction of the court, pointed out that the
petitioner’s claim was procedurally barred. Id. at 855 n.2. The
court then admitted that “[h]aving raised these issues by our own
27
motion perhaps led us to their resolution and caused us to overlook
the procedural bar.” Id.
Our sister circuit (as well as the majority in this case)
would have been well served to follow the lead of the D.C. Circuit:
Of course not all legal arguments bearing upon the issue
in question will always be identified by counsel, and we
are not precluded from supplementing the contentions of
counsel through our own deliberation and research. But
where counsel has made no attempt to address the issue,
we will not remedy the defect, especially where, as here,
“important questions of far-reaching significance” are
involved.
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)
(quoting Alabama Power Co. v. Gorsuch, 672 F.2d 1, 7 (D.C. Cir.
1982)). The case before us is of far-reaching significance for
Texas’s scheme for teacher discipline and terminations that was
carefully crafted to enhance teachers’ rights while ensuring a fast
decisional track. The majority opinion casts constitutional doubt
on the scheme despite Coggin’s concession that the statutorily
mandated process is constitutional.
The American system of judicial decisionmaking is
grounded on the adversary process. Vintson v. Anton, 786 F.2d
1023, 1025 (11th Cir. 1986) (noting that the adversary system is
what “characterizes the judicial process under the Anglo-American
common law”). “The premise of our adversarial system is that
appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
28
questions presented and argued by the parties before them.”42
Carducci, 714 F.2d at 177. For this court to base its decision on
grounds not raised by the parties is a “serious misadventure in the
judicial process” and constitutes nothing less than the destruction
of the cornerstone of the adversarial process. Lyons, 731 F.2d at
250 (Rubin and Williams, JJ. concurring in part and dissenting in
part). Judge Posner has made the same point:
This is a case in which the lawyer for a party tells the
appellate court that he does not base his claim on
grounds X and Y . . ., but the court’s independent
research and reflection persuade the court that the
lawyer is wrong. If reversal on such grounds is proper,
we no longer have an adversary system of justice in the
federal courts.
Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207, 1215 (7th Cir.
1993).
Under the majority’s opinion, LISD will lose its appeal
based on an argument of which it had neither notice nor opportunity
to respond. Receiving notice and being given the right to respond
constitute the core of procedural due process. Therein lies the
42
As Judge Phillips of the Fourth Circuit noted,
[t]he most critical characteristic of the adversarial (as
opposed to inquisitorial) system of litigation is the degree
to which it gives over to parties acting through counsel a
substantial degree of control over the litigation process.
This control extends both to the formulation of the legal and
factual issues to be laid before the court and to the
presentation of factual proof and legal contentions on these
issues to the decision maker.
Hirschkop v. Snead, 594 F.2d 356, 377 (4th Cir. 1979) (en banc)
(Phillips, J., concurring).
29
ultimate irony. The majority’s opinion denies due process to LISD
while simultaneously holding the school district liable for
depriving Coggin of due process.
I respectfully dissent.
30
EMILIO M. GARZA, Circuit Judge, joined by JOLLY, JONES, SMITH,
BARKSDALE, and CLEMENT, Circuit Judges, dissenting:
This is, in essence, a causation case. Specifically, we must
address whether the LISD violated Coggin’s procedural due process
rights by terminating him without a hearing after the Commissioner
determined that, under state law, Coggin had untimely filed his
request for a hearing. Because I would find that the LISD did not
violate Coggin’s procedural due process rights, I respectfully
dissent.
I
Section 1983 creates a cause of action against any person who, under color of law, “subjects,
or causes to be subjected,” a person “to the deprivation of [a constitutional right].”43 In order to
prevail on a § 1983 claim, this court has repeatedly held that it is not sufficient for a plaintiff to merely
establish a violation of one of his constitutional rights. A plaintiff must also show a causal connection
between the deprivation of that right and the actions of the defendant against whom relief is sought.
43
Specifically, the text of § 1983 reads:
Every person who, under the color of any statute,
ordinance, regulation, custom, or usage of any
State or Territory, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding
for redress.
42 U.S.C. § 1983.
31
See, e.g., Neubauer v. City of McAllen, 766 F.2d 1567, 1571 n.11 (5th Cir. 1985) (reversing
judgment against some of the defendants in a § 1983 action because plaintiff failed to show that they
personally caused the deprivation of a constitutional right); Irby v. Sullivan, 737 F.2d 1418, 1425 (5th
Cir. 1964) (“To be liable under section 1983, a [defendant] must be either personally involved in the
acts causing the deprivation of a person’s constitutional rights, or there must be a causal connection
between an act of the [defendant] and the constitutional violations sought to be addressed.”). This
causation requirement applies with equal force in cases where a § 1983 action is premised on a
violation of procedural due process. Reimer v. Smith, 663 F.2d 1316, 1322 n.4 (5th Cir. 1981) (“It
is axiomatic that a plaintiff cannot succeed in a § 1983 action if he fails to demonstrate a causal
connection between the state official’s alleged wrongful action and his deprivation of life, liberty, or
property.”).
The panel opinion conceded (as the majority opinion now concedes) that Coggin needed to
establish causation to prevail, but contended that he had met that burden because the LISD made the
final decision to terminate him knowing he had not received a hearing. Thus, the panel opinion
concluded, the LISD deprived Coggin of his property without due process of law. Coggin v.
Longview Indep. Sch. Dist., 289 F.3d 326, 336-38 (5th Cir. 2002). The problem with the panel
opinion’s analysis, however, is that it focused on the wrong causation issue. It based its causation
analysis on who deprived Coggin of his protected property interest, when the real issue is who
deprived Coggin of his procedural due process right.
Careful consideration of the right to procedural due process reveals the heart of a due process
violation. Procedural due process do es not protect one from the deprivation of life, liberty or
property, but rather “from the mistaken or unjustified deprivation of life, liberty, or property.” Carey
32
v. Piphus, 435 U.S. 247, 259 (1978) (emphasis added). In other words, the key to a procedural due
process claim is whether the plaintiff was afforded the quantity of process to which he was
constitutionally entitled prior to the deprivation of a protected interest. In Zinermon v. Burch, the
Supreme Court described the right to procedural due process as follows:
The Due Process Clause also encompasses a third type of protection, a guarantee of
fair procedure. . . . In procedural due process claims, the deprivation by state action
of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without
due process of law. . . . The constitutional violation actionable under § 1983 is not
complete when the deprivation occurs; it is not complete unless and until the State
fails to provide due process. Therefore, to determine whether a constitutional
violation has occurred, it is necessary to ask what process the State provided, and
whether it was constitutionally adequate.
494 U.S. 113, 125-126 (1990) (internal citations and footnote omitted); see also Brewer v. Chauvin,
938 F.2d 860, 864 (8th Cir. 1991) (“The complained-of constitutional violation is the denial of
procedural due process, not the plaintiff’s discharge from public employment.”). Stated simply, a
plaintiff’s due process rights are not violated because his property was taken from him; his rights are
violated because he was denied a certain amount of process before his property was taken. Because
the essence of a procedural due process claim is whether or not the plaintiff was afforded
constitutionally adequate process, the majority opinion’s emphasis on who made the final decision
to terminate Coggin is misplaced.
33
To determine whether the LISD caused the deprivation of Coggin’s procedural due process
right in this case, we must ask whether the LISD caused Coggin not to have a due process hearing.
Based on the record in this case, the answer to this question is no. Under § 21.253 and § 21.254 of
the Texas Education Code, the sole authority to appoint a state certified hearing examiner was vested
in the Commissioner of the TEA. In this case, the Commissioner denied Coggin a hearing because,
based on his interpretation of § 21.253, Coggin’s request for a hearing was untimely. Even if one
assumes that Coggin’s rights were violated by the Commissioner’s action, it was this mistake that
caused Coggin to be denied a hearing and thus deprived him of his right to procedural due process.
In contrast, the LISD did nothing to prevent Coggin from obtaining a pre-termination hearing. The
LISD properly provided Coggin with notice of its intent to terminate his employment and of the
measures he needed to take in order to preserve his right to a hearing. See TEX. EDUC. CODE ANN.
§ 21.251(a)(1). Once the Commissioner refused to appoint a hearing examiner, the LISD had no
authority to order the Commissioner to change his mind or to appoint a certified hearing examiner
on its own. See TEX. EDUC. CODE ANN. § 21.257. Because the actions of the LISD did not in any
way cause the denial of Coggin’s right to a hearing, the LISD cannot properly be said to have caused
the deprivation of Coggin’s right to procedural due process.
For the purposes of § 1983 liability, it is immaterial whether the LISD had other options
available to afford Coggin due process after the Commissioner refused to appoint a hearing examiner.
Although it is conceivable that the LISD could have held its own due process hearing44 or sent a
44
The majority opinion suggests that Texas law does not prohibit
the LISD from holding its own hearing. Maj. Op. at 14. This
conclusion is dubious. The Texas Supreme Court has held that a
school district may not avoid the rules set forth in the Texas
Education Code for terminating an employee. Montgomery Indep. Sch. Dist.
34
second notice of termination in an effort to extend the period of time in which Coggin could file a
timely request for a hearing, any possible “inaction” by the LISD cannot fairly be termed a “cause”
of the potential constitutional violation at issue here.
An “inaction” view of causation misstates the LISD’s obligation to Coggin in this situation.
Under the statutory setting of this case, Texas law deliberately separates the decision to terminate a
public school teacher from the dut y to afford a due process hearing, presumably as a means of
protecting teachers from biased school board reviews.45 The LISD had no authority to appoint a
hearing examiner under this statutory scheme, nor did it have the authority to supplement Coggin’s
statutorily-governed hearing with its own factfinding hearing. See Davis, 34 S.W.3d at 568. Under
Texas law, the LISD’s role in providing Coggin procedural due process was complete when it
v. Davis, 34 S.W.3d 559, 568 (Tex. 2000) (concluding that “the Board did not have authority within
the statutory scheme of subchapter F” to make additional findings beyond those made by the
appointed hearing examiner); see also TEX. EDUC. CODE ANN. § 21.251 (“[Subchapter F] applies if
a teacher requests a hearing after receiving notice of the proposed decision to: . . . (2) terminate the
teacher’s probationary or term contract before the end of the contract period . . . .”). Although Davis
did not consider the due process aspects of the statutory scheme, it certainly illustrates the mandatory
nature of the regime. The Education Code does not clearly authorize a school district to hold any
type of hearing once the Commissioner declines to appoint a hearing examiner, and Davis at least
suggests strongly that the LISD is forbidden from stepping beyond the narrow dictates of the scheme.
See also Reyes v. Roma Indep. Sch. Dist., No. 083-R2-199, at 4-6 (Tex. Com m’r Educ. Feb. 25,
2000) (stating that the procedures set out in Chapter 21 are mandatory and exclusive, that a board
of trustees does not have jurisdiction to deviate from those procedures, and that the parties cannot
agree to change those procedures unless the statute authorizes them to do so).
45
The apparent purpose of this scheme is to ensure teachers a fair and independent review of
the allegations against them when faced with termination prior to the expiration of their contracts.
Under Texas law, Coggin could be terminated only for “good cause as determined by the board.”
See TEX. EDUC. CODE ANN. § 21.211(a)(1) (emphasis added). By providing for an independent pre-
termination hearing, however, Texas law limits the circumstances in which a school board may find
“good cause” for termination. Although the school board may reject the conclusions of law and
proposed action recommended by the appointed hearing examiner in an employee’s case, the school
board may not reject the hearing examiner’s findings of fact if they are supported by the substantial
evidence in the record. See TEX. EDUC. CODE ANN. § 21.259.
35
provided him with constitutionally adequate notice of the charges against him and informed him of
the procedures he needed to follow to request a pre-termination hearing from the Commissioner of
the TEA. Once the LISD fulfilled this obligation, under Texas law, the duty to ensure that Coggin
was afforded the hearing to which he was constitutionally entitled shifted to the Commissioner.46 The
majority opinion does not hold that this shift in obligations is unconstitutional. Indeed, it cannot,
because no case holds that it is unconstitutional for Texas to “divide” due process in this way. Cf.
Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986) (“The states have virtually complete freedom
to decide who will be responsible for [the tasks of modern government], and therewith to determine
who will be held liable for civil rights violations that occur in the course of carrying them out.”).
Instead, the majority opinion chooses to ignore this issue, limiting its analysis to the tangential issue
of whether the LISD is the “final arbiter of employment disputes.”47 Maj. Op. at 13.
46
Normally, the party who causes the deprivation of property is the party responsible for affording
due process. Indeed, had this case arisen before the Texas legislature amended the Texas Education
Code in 1995, there would be no question that the LISD could be held liable under § 1983 for
terminating Coggin without a hearing. In 1995, however, the Texas legislature dramatically altered
the state’s provisions for terminating teachers under contract, and thereby changed this result.
47
The “final decision maker” analysis in the original panel
opinion concluded with the argument that the LISD was required to
conduct a “due process hearing to comply with its federal
constitutional obligations,” and that any obstacle created by Texas
law would “have to yield to federal law under the Supremacy
Clause.” Coggin, 289 F.3d at 336.
In actuality, the Supremacy Clause is irrelevant. It might be tempting to reason that if state
procedures prevented the LISD from remedying the “mistake of law” made by the Commissioner,
then those procedures should yield to federal law. This argument, however, assumes that the LISD
retained an obligation to ensure that Coggin receive all the process he was due prior to terminating
his employment. As no ted above, Texas law vests that obligation in the Commissioner of the
TEA—not the school district. Moreover, there is no legal support for the proposition that LISD had
a federal obligation to compensate for the Commissioner’s alleged mistakes. Cf. Bush, 795 F.2d at
1209.
36
Thus, the only way that Coggin could succeed against the LISD in this case is if we invalidate
Subchapter F’s hearing provisions. But Coggin does not challenge the constitutionality of Texas’s
statutory scheme, either on its face or as applied in his case. On the contrary, he concedes that the
procedures set forth in Subchapter F of the Texas Education Code are precisely the kind of
“reasonable procedural requirements” for invoking due process rights previously sanctioned by the
Supreme Court.48 See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). Because Coggin
argues only that the LISD violated his procedural due process right by terminating him after the
Commissioner wrongfully denied him a hearing, his claim fails for lack of causation.
II
The majority opinion has taken a different tack from that of the panel opinion. The majority
opinion contends that the LISD was the “sole cause of the violation of Coggin’s right to due process
of law” because it discharged Coggin four business days after Coggin received notice of the
Commissioner’s refusal to appoint a hearing examiner. Maj. Op. at 8. The logic of this “timing”
causation argument fails on its own terms, see Parts II.A and B infra, but the majority opinion’s
approach is suspect for at least two other reasons.
First, this new causation theory was never briefed or argued to either this court or the district
court. In the panel opinion, the majority concluded that the LISD had violated Coggin’s due process
rights by firing him when it knew he had requested a hearing but had not received one. Coggin, 289
F.3d at 335-38. The majority opinion now contends, without any prompting by the parties, that the
48
Coggin does argue, however, that the Commissioner improperly
adopted a receipt rule instead of the more “traditional” mailbox
rule, which has led to mischief at both the trial and appellate
levels.
37
LISD’s error was acting too quickly. This latter theory was not in any of the briefs submitted to the
district court, nor was it included in the district court’s ruling. It is inappropriate for the majority
opinion to decide this case on grounds that were not presented. United States v. Brace, 145 F.3d
247, 255-56 (5th Cir. 1998) (en banc) (“Restated, we review only those issues presented to us; we
do not craft new issues or otherwise search for them in the record.” (emphasis added)).
Second, the majority opinion states that the LISD’s discharge of Coggin “prematurely cut off
Coggin’s right to appeal under § 7.057(d).” Maj. Op. at 9. Yet it cites no state law to support this
argument. In fact, the majority opinion’s underlying premise that TEX. EDUC. CODE ANN. § 7.057(d)
somehow incorporates TEX. GOV’T CODE ANN. § 2001.176 is pure speculation about Texas law.
Even if Coggin had a reasonable period of time to file an appeal, as the majority opinion contends (see
Maj. Op. at 9 n.21), its further conclusion that Coggin did not have any appeal rights after the LISD
terminated him is simply not supported by existing authorities. See, e.g., Smithville Indep. Sch. Dist.
v. Hoskins, Nos. 03-98-00561-CV, 03-98-00624-CV, 1999 WL 716665 (Tex. App.—Austin Sept.
16, 1999, no pet.) (not designated for publication) (considering a teacher’s § 7.057(d) appeal after
he had been terminated by the school board and affirmatively deciding that the court had jurisdiction
to consider the issues raised by the teacher, including various due process claims).
A
The majority opinion reasons as follows: First, Coggin had a protected property interest in
continued employment and was entitled to constitutional due process before his employment was
terminated. Second, Coggin attempted to invoke his right to due process by requesting a pre-
termination hearing from the Commissioner. Third, the Commissioner erroneously deprived Coggin
of his right to a pre-termination hearing by ruling that Coggin’s request was untimely. Fourth, the
38
Commissioner’s error could have been corrected by the Texas state courts, but the LISD cut off
Coggin’s appeals rights by firing him too quickly.49 Thus, the LISD is the “true” reason that Coggin
was not provided with the pre-termination hearing to which he was entitled.
Of course, the third step of the majority opinion’s reasoning is the linchpin to its analysis.
Although the nature of Coggin’s employment created due process rights, such rights can be waived.
The Supreme Court has held that a state may both create reasonable procedural requirements
regarding the right to a hearing and terminate a claim for failure to meet these statutory requirements
without raising due process concerns. Logan, 455 U.S. at 437. In other words, Coggin was not
entitled to a pre-termination hearing unless he complied with the reasonable procedural requirements
of Chapter 21 of the Texas Education Code.50 And one of those requirements is that a “teacher must
file a written request for a hearing . . . with the commissioner not later than the 15th day after the
date the teacher receives written notice [of the proposed termination].” TEX. EDUC. CODE § 21.253
(emphasis added).
The Commissioner refused to appoint a hearing examiner because he determined that
Coggin’s request was late, and thus Coggin had waived his right to such a hearing. If the
Commissioner was correct—that the mailbox rule does not apply under state law—then Coggin was
49
The majority opinion’s recitation of the facts also suggests
that the LISD terminated Coggin in the face of a “‘flurry of
correspondence’” between Coggin’s attorney that the Commissioner
regarding the timeliness of Coggin’s hearing request. Maj. Op. at
5. In fact, the record clearly indicates that the flurry did not
even begin until eleven days after Coggin’s termination. So, there
is no reason to believe that the LISD knew or had reason to know
that Coggin was challenging the Commissioner’s determination.
50
This fact is undisputed. Again, Coggin himself admits that the
procedures set forth in Subchapter F of the Texas Education Code are precisely the kind of
“reasonable procedural requirements” sanctioned by the Supreme Court in Logan.
39
not constitutionally entitled to a hearing or any other kind of process before the LISD terminated him.
See Logan, 455 U.S. at 437. Accordingly, if Coggin waived his rights, then it is irrelevant whether
the LISD fired him one day later, or one year later.
When phrased this way, it is clear that the majority’s opinion rests on one fundamental
premise: Section 21.253 of the Texas Education Code sets out a “mailbox rule” for hearing requests,
and thus the Commissioner was wrong to apply a “receipt rule” to Coggin’s request. The validity of
Coggin’s § 1983 suit depends on this premise. Coggin cannot establish that his due process rights
were violated unless he can show that he did not waive those rights. Surprisingly, the majority
opinion does not focus on the burden of proof in this case. But it is undisputable that Coggin bears
the burden of showing that a constitutional violation occurred. See Crawford-El v. Britton, 523 U.S.
574, 588 (1998) (reiterating that the plaintiff bears the “initial burden of proving a constitutional
violation”); Lewis v. Woods, 848 F.2d 649, 652 (5th Cir. 1988) (“It is axiomatic that a plaintiff who
files suit under 42 U.S.C. § 1983 may recover only if he proves a constitutional violation . . . .”).
The original panel opinion and the district court’s ruling at least implicitly recognized this, and
included an explicit discussion on the rule of § 21.253. Coggin, 289 F.3d at 330-32. Although the
detailed reasoning of those opinions is not included in the majority’s opinion,51 the waiver issue must
still be considered because it is the necessary platform for the majority opinion’s current holding. A
careful examination reveals that this platform is faulty.
51
The majority does, however, implicitly recognize the importance
of this point. See Maj. Op. at 9 (“Consequently, we conclude that
Coggin did not waive his rights . . . .”), 10 (“In this case, . .
. Coggin was deprived of his protected employment right without the
due process hearing to which he was entitled and which he did not
waive . . . ”).
40
B
The majority opinion, like that of the original panel (and the district court), fails to recognize
that § 21.253 of the Texas Education Code is ambiguous. Instead, all are content to believe that
§ 21.253 clearly applies a “mailbox rule” to hearing requests. However, § 21.253 does not say, on
its face, that a filing is deemed timely if it was postmarked within the fifteen-day period. Likewise,
§ 21.253 do es not explicitly state that hearing requests are governed by a receipt rule.
Notwithstanding the majority opinion’s assumptions to the contrary, § 21.253 is anything but clear.52
52
This ambiguity can best be illustrated by examining the
position taken by the district court. The district court first
reasoned that “file” must not mean “receipt by the commissioner”
because other provisions of the Texas Education Code explicitly use
“receipt” language. Yet this argument is overly broad. Chapter 21
of the Texas Education Code uses “receive” to refer to a party’s
receipt of a document. Upon receipt, the party is given a certain
amount of time to perform a designated action. In other words, the
party is required to “file”, “request”,“notify”, et cetera within
so many days after “receiving” some type of notice. See, e.g.,
TEX. EDUC. CODE ANN. § 21.207 (after “receiving notice of the proposed
nonrenewal,” the teacher “shall notify the board of trustees . . .
not later than the 15th day after the date the teacher receives the
notice”) (emphasis added); TEX. EDUC. CODE ANN. § 21.254(c) (“The
commissioner shall assign a hearing examiner . . . not later than
the 10th business day after the date on which the commissioner
receives the request for a hearing.”) (emphasis added). Viewed
this way, it is clear that the Code’s use of “receive” may be
nothing more than a logical way to reference the start of a time
period. This syntax does not, however, illuminate the meaning of
“file” in § 21.253.
The district court also pointed out that the TEA’s own
administrative regulations incorporate a mailbox rule, see TEX.
ADMIN. CODE ANN. § 157.1050(b), and took this as evidence of a
general “view of the agency” that the mailbox rule governs
hearings. But a general, catch-all provision in a different state
code may not trump the detailed provisions set forth in chapter 21
of the Education Code. Evidence from within the same statutory
scheme is more indicative of what the Texas legislature intended.
See, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901
(Tex. 2000) (holding that “the more specific statute controls over
the more general”); Rudman v. R.R. Comm’n of Tex., 349 S.W.2d 717,
41
In fact, Coggin himself knew of § 21.253’s ambiguity. He admits that he checked with the post office
to see if his request, sent by certified mail, with return receipt requested, would arrive by the deadline.
So Coggin, by his own admission, was not relying on a mailbox rule.53
In the face of this obvious ambiguity, the Commissioner could have reasonably interpreted
the statutory language to include either a mailbox rule or a receipt rule. The Commissioner chose the
latter. And, had the Commissioner’s interpretation been challenged in a Texas court, it would have
been given “serious consideration, so long as the construction [was] reasonable and [did] not
contradict the plain language of the statute.” Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) (quoting
Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)). The district court, however,
(Tex. 1961) (“Courts must take statutes as they find them.”); Gov’t
Pers. Mut. Life Ins. Co. v. Wear, 251 S.W.2d 525, 529 (Tex. 1952)
(holding that duty of courts is to construe a statute from the
language used therein if possible). And a careful examination of
chapter 21 reveals that the legislature deliberately included a
mailbox rule in other sections. See TEX. EDUC. CODE ANN. §§
21.105(a), .160, .210. Section 21.253 includes no such language,
and this fact weighs against a mailbox rule.
Finally, the district court relied on Ward v. Charter Oak Fire
Ins. Co., 579 S.W.2d 909 (Tex. 1979). While the similarities
between Ward and this case are striking, its importance is probably
exaggerated. Decided almost twenty-five years ago, Ward involved
the worker’s compensation law, which the Texas Supreme Court held
was “to be liberally construed to effectuate the remedies it
grants.” Id. at 910. Liberal construction of the Worker’s
Compensation Law was an established policy even before Ward, but no
legal authority indicates that Texas liberally construes the
statutory scheme at issue here.
53
If § 21.253 did clearly incorporate a mailbox rule, Coggin
would have a much stronger constitutional claim. In that case, he
could argue that it would be arbitrary, and therefore
unconstitutional, for the Commissioner to deny Coggin’s request for
a hearing as untimely. Cf. Logan, 455 U.S. at 431-34 (finding a
due process claim when the plaintiff was denied a hearing after
complying with every state law procedural requirement). This is
not, however, the situation before us.
42
erred by not according the Commissioner this deference. It failed to even consider the
constitutionality of the receipt rule applied by the Commissioner.
This failure was a serious analytical error. In its haste to determine whether a constitutional
violation had occurred, the district court did not stop to consider whether the receipt rule had
afforded Coggin due process. Without a constitutional violation, Coggin does not have a claim under
§ 1983. Thus, the pertinent query for the district court was whether the Commissioner’s reasonable
application of a receipt rule provided Coggin with the necessary process. I agree with the majority
opinion (and the district court) that a fifteen-day mailbox rule satisfies due process. Importantly,
however, a fifteen-day receipt rule is equally constitutional.
The constitutional minima of procedural due process are notice and a meaningful opportunity
to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); Matthews v. Eldridge,
424 U.S. 319, 333 (1976). Against this constitutional background, it is clear that a fifteen-day receipt
rule is as reasonable a procedural requirement as a fifteen-day mailbox rule; both provide a
meaningful opportunity for a hearing. In fact, other courts have found significantly shorter time
periods constitutional. See Lindsey v. Normet, 405 U.S. 56, 64-65 (1972) (finding an eviction
procedure with a two to six day early-trial provision constitutional); Panozzo v. Rhoads, 905 F.2d
135, 139 (7th Cir. 1990) (affirming a district court’s ruling that notice of a pre-termination hearing
less than a day in advance is sufficient for due process purposes); see also Giberson v. Quinn, 445
A.2d 1007, 1009-10 (Me. 1982) (considering a ten-day time limit with a receipt rule for filing a
request for a hearing following the suspension of a driver’s license).
The simple fact is that the district court did not need to determ ine state law to evaluate
Coggin’s § 1983 suit: the Commissioner’s application of a receipt rule did not violate Coggin’s due
43
process rights.54 Since the Commissioner applied a reasonable construction of a facially ambiguous
statute, Coggin cannot seriously argue that his denial of a hearing was arbitrary. Cf. Neal v. Puckett,
286 F.3d 230, 249 (5th Cir. 2002) (en banc) (Jolly, J., concurring) (defining “arbitrary” to mean
“determined by individual discretion”), cert. denied, 123 S.Ct. 963 (2003); Reid v. Rolling Fork Pub.
Util. Dist., 979 F.2d 1084, 1088 (5th Cir. 1992) (holding that “arbitrary” means unreasonable action
or discrimination (emphasis added)). Thus, the opportunity afforded Coggin co uld only fail to be
meaningful if it fell short of the constitutional minima—but it is the United States Constitution that
determines the process Coggin was due, not the filing rule of § 21.253 of the Texas Education Code.
And, as explained above, the rule applied by the Commissioner more than suffices when measured
by a federal constitutional yardstick.55
The district court’s unnecessary foray into state law obscures the plain fact that Coggin failed
to demonstrate a constitutional violation.56 For the reasons given above, Coggin cannot prove that
54
Even if the Texas courts someday decide that § 21.253
incorporates a mailbox rule, the Commissioner’s failure to afford
Coggin that extra increment of procedural protection would not
automatically become unconstitutional. At the time Coggin was
denied a hearing, the Commissioner’s reasonable interpretation and
application of § 21.253 was enough to accord Coggin due process.
Loudermill, 470 U.S. at 546; Lindsey, 405 U.S. at 64-65.
55
To be clear, because the receipt rule is constitutionally
adequate, this court should not attempt to resolve the meaning of
the term “file” in § 21.253. Likewise, the district court should
have left this issue, a matter of state law, for Texas to decide.
56
And the majority opinion seems to build on this error. It
skims over this issue by insisting that the LISD “does not
challenge or point to any error in the district court’s
determination that Coggin timely filed his request for a hearing.”
Maj. Op. at 7. This is simply not true. The LISD argued, before
both the original panel and the en banc court, that Coggin was
provided with the process he was due under the Fourteenth Amendment
and, likewise, that the district court erred in its analysis of
44
the Commissioner’s reasonable application of a receipt rule to his hearing request wrongly denied him
a hearing. Accordingly, Coggin cannot show that he was unfairly denied a hearing; he cannot show
that he did not waive his right s; and, therefore, he cannot prove that the LISD violated his due
process rights by firing him immediately.57
The majority opinion attempts to shore up this faulty analysis by attaching various labels to
the LISD, such as “responsible state actor,” “final policy and decision maker,” and “final arbiter of
employment disputes.” Maj. Op. at 12, 13, 14. These terms are reminiscent of the analysis in the
original panel opinion. Again, the panel majority concluded that the LISD violated Coggin’s due
process rights because its “intentional discharge of Coggin in spite of its knowledge that he had not
had any kind of hearing necessarily was the moving force behind Mr. Coggin’s deprivation and
what process Coggin was due. See, e.g., Appellant’s Br. at 18, 24;
Appellant’s Supplemental En Banc Br. at 15-16. The LISD also
argues that this error, in turn, led the district court to
“improperly . . . reach and resolve other unnecessary questions.”
Appellant’s Br. at 24.
The LISD may not explicitly challenge the district court’s
holding that § 21.253 incorporates a mailbox rule, but it clearly
argued that the district court did not need to decide this issue
because the rule of Logan applied. See id. at 18. Because we
review the district court’s legal determinations de novo, the
LISD’s arguments are more than sufficient to preserve the issue of
whether it was legally necessary, under federal constitutional law,
for the district court to interpret § 21.253.
57
Coggin’s ultimate failure to demonstrate a constitutional
violation by the LISD distinguishes this case from Cleveland Board
of Education v. Loudermill, 470 U.S. 532 (1985). In Loudermill,
the terminated school district employees had made the necessary
showing that their rights were violated when they were fired
without a pre-termination hearing. Id. at 548. Unlike Coggin,
the Loudermill employees were given no opportunity to request a
pre-termination hearing. Id. at 536-37. Thus, the issue of whether
the employees had waived their rights was inapplicable.
45
injury.” Coggin, 289 F.3d at 336. But this line of reasoning is also faulty for the reasons given
above. See Part I supra.
Assuming, arguendo, that Coggin could somehow prove that § 21.253 clearly incorporated
a mailbox rule and thus he did not waive his right to a hearing, he still cannot succeed in this suit. No
matter what process Coggin was owed, he has failed to establish that the LISD caused the deprivation
of his rights. Without the necessary causal link between Coggin’s supposed due process violation
and the actions and/or duties of the LISD, Coggin cannot maintain a valid § 1983 claim against this
defendant.
III
Failure to use proper constitutional analysis has led to the majority’s conclusion that the LISD
violated Coggin’s procedural due process rights. They choose to grant relief when, for a multitude
of reasons, Coggin has not proven a viable § 1983 claim. Even if the circumstances of Coggin’s
termination seem unjust, we should avoid acting as cognoscenti of what is right and wrong, less we
effectively relegate the Constitution and state law to mere bien pensant.
For the above reasons, I would vacat e the decision of the district court and render for the
LISD.
46
47
Coggin v. Longview Indep Sch
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-07-23
Citations: 337 F.3d 459
Copy CitationsCombined Opinion