sergeant for twenty six years member of the united states army seeing active duty police officer was terminated and indicted along with other the instance of geoffrey covington by the present bill police department there was a state court claim filed by board and we follow the nine hundred eighty three action in the united states district court the city of madisonville and geoffrey covington  or should have been parties in the whistleblower case so so those so closely identified it with each other covington claim privet with the city she struggled with how to prove that his admissions or his contentions that he was a part of the city itself were legally binding and she so ordered that that he was not in privi she held that the the city was instead protected by a reclusive law all that it it was to be denied that i was being denied a an opportunity to hold the city to account because of the the was a poor action so that's the first thing i want to talk about this mor the city was not precluded by the plea to the jurisdiction that was granted by the state district judge and madisonville texas and the reason is number one to do the precludes the benefits of the state court action is federal rule superseded forty one b and i cite that reply and i reply brief pages two and five i would go on with some of these but it's been my experience that where i do it in the brief that it's it's beneficial to the court to cite to the brief so the court can see by russia now the third reason that the the  city is not entitled precludes you've been at this is because of the circumstances in other cases analogous to this case and we lay out a whole string of those cases and in in the and if you bring a lawsuit that doesn't include it's going to have precluded the fact if you're thrown out with prejudice i can it's in my five day decades at the bar and nearly five decades in this court claim that could have been handled and should have been handled in state court so they the cases all were brawl where the state will support claim was brought in the court that most appropriately should deal with by the way that case is still on but the whole point of claim preclusion is you can't bring two lawsuits involving the same set of facts even if you'd rather have one claim in state court and one claim in federal court there's you have to bring them together if they arise out of the same facts in the same parties not necessarily know the the state will support and i'm dealt with you well you can live in your world judge rosen thought differently and i think she was right but you can if you want to out that that in quoting snowball that that i'm not obligated to bring all cases in federal court in state court that could have been for doing that and i certainly don't think that judge rosenthal who i've known for a long time can fault me for doing it the i think it's important to think when you go to the flac versus a bright star and if you look at all the texas cases eagle versus bright star that's is is the default case that they seem to go back to in this  require that he do that when he in invokes the initiate says he must the appeal procedure at this at that's available in the in the agency and then seeks instead of jumping in saying it's futile to go to score he instead rides it out he did write it down and it was never it was never satisfied but that doesn't mean that he was a fault for having waited and tried to ride it out and haven't had a hearing and so that the ninety day the ninety day issue i think is was was fatally false but nevertheless the state court ruled that the ninety day issue jurisdiction so if it had no jurisdiction in texas law it couldn't decide the merits of the case and if it couldn't decide the merits of the case it couldn't be binding as a precludes and counterpart in a race you to call the case that also that i think is important or the point that i think is important is that the city has grossly misstated the law with regard to texas bring it to state court your honor and i'm really concerned about that because a i feel like with that would have been that the judge cost i think that that would have been basically a matter that would be a principle that's imposed upon the plaintiff in this case that should not have been he should not be required to to elect to bring a federal action in state court where he realizes that that's going to result in a sucking up of all actions into federal court he ought to be able to parse and take the cases that are state court cases state court cases or federal court cases to federal court understand on the same facts so you can win on the same facts in state court lose in federal  vice versa and that's just that's every we rushed to the cot as against but we had more action we had more matters in the federal court we had we have first of all we have should have brought the state claim here to what's the point we have supplemental jurisdiction all the time we decide state law issues and supplemental call in a whistle board claim i could not have brought any action except those actions for an employer the only thing i could have dealt with was david simms was what had happened to him as an employee there were he exercise e back to the to the point of you know you're dealing with covington as is a sociopathic personality or a person who is deeply disturbed it please the court i am radio i'm here for jeff covington i'm going to begin with the last point that counsel made concerning my client involvement in the situation i think the judge rosenthal was correct when she said that it was undisputed in the trial court at least that that mark client made a recommendation for terminations of the plaintiffs and that's not disputed that's in the paperwork and that the decision was made by the police chief according to their policies according to city ordinances it's the it's the chief in the city manager who made the decision the letter of terminations was signed off on by the chief by the city manager the  to get out from under a case that judge rosenthal probably found to be dispositive of the claims against my client which is the culbertson case and the culbertson case very similarly involved a situation where a a a  person who made a recommendation for an employment action was held to be immune from suit the court did not need to decide the case on the first prong of the immunity defense which is whether or not there was a liable for the for the terminations it could be that the employer in that way in this case it would be the city could be liable if if the plaintiff could show that that the that the decision maker was a mere cat's paw or that the decision maker adopted the the rationale of the recommending employee but that's not an issue in this case and so it just comes down to to my client being sued in his personal capacity for merely making a recommendation to termin the contention that that mr covington was not aware of any either of the two communications that the plaintiffs as were those that motivated his terminations one was several months before the termination decision he went into the chief's office and he had a conversation with the chief to the effect that he had heard that snitches in the in the community had indicated that covington was trying to set his wife ups trying to frame  wife by having drugs planted on her the testimony was that covington that it seems didn't mention this to anybody the chief's testimony was that he didn't mention this conversation to anybody and in covington testimony was that he didn't learn it from anybody so as far as you know who could have how that how the information of that communication could have gotten out so that covington could have learned about it and then been motivated by it there's no evidence of that garcia he did mention it to anybody dylan garza was a part of his ongoing investigation he didn't mention it to anybody covington claims that nobody mentioned to him that anybody had delivered anything to the texas rangers i think that the evidence is that prior to the terminations decision it had been learned that seems that accessed those matters on the computer but there was no evidence that they were aware that anybody had delivered the tapes and so the judge rosenthal didn't dress the issue of motivation did she didn't need to but in any event i think that the that the record is is is very clear that neither of those communications got out from from the from the  communications or the recipients of the communications and got back to covington it's not been linked up finally there is the the last staging ground for the for the summary judgment which i think is and is an adequate independent ground is one that that is spoken to specifically by this recent case of the fifth circuit called powell versus the town of ball and at the time that we brief this case out it had been a district court decision  involved the terminations it was that that occurred in may of two thousand and eleven which is about a year before this particular terminations in this covington sims case but the but the but what was clearly establish noise was the same because there's been no intervening fifth circuit case of between may of two thousand and eleven in july of two thousand and eleven that would have changed the law on any respect and in that case the court was dealing with a situation where a police officer was providing information to the f b i providing information to outside law enforcement agencies it was part of his job duties at least it may not have been the court the court wasn't satisfied that the that the that the city had proved that it was part of his ordinary duties to deliver matters to the f b i and the ordinary gloss on and on and on the official duty requirement came up in the lane which is post covington and incentives but the court went in and said that all the city officials who have been sued their individual capacities are immune from suit because reasonable fishes at that time could have believed based on the adopted which is that this is a complicated case on the facts but not on the law a couple more points very quickly or order so she found no liability because there is qualified immunity under culbertson because your client was not the decision maker and then it's the opinion says when there's also this conspiracy claim because there's no underlying violation constitutional violation conspiracy falls by the wayside but if you were conspiring with may which i think is the allegation conspiracy claim gets around culverts i'm assuming that's that's the case because i think the only evidence of conspiracy is a recommendation i mean that's it i don't think that there's been any evidence of an agreement i don't think there's been any evidence that that may agreed to two points are that federal common law would not have treated the dismissal for lack of subject matter jurisdiction if a suit had been brought in federal court as a dismissal with prejudice his second point is that under rule forty one b of the rules of civil procedure the rules would not treat a dismissal in a federal court as a dismissal with prejudice however in that in those appellant misses the mark because under supreme court precedent specifically meat reverses warren city school which is cited page twelve of the brief this court is bound to accept the designation of dismissal with prejudice that was a fixed by the state court and this court held in a court in norris versus hearst trust which is also cited at page twelve of the greek so that addresses the appellant's first two points that there are some federal either common or statutory authority that would have addressed the manner of dismissal of this case in federal court because this case was dismissed in state court as it relates to the claims against do not permit restrict company and counsel told the court that appellant has cited a string of cases that involve dismissals where prejudice did not attach but in those cases in each of those cases cited in the appellate brief the court rendering the judgment rendered judgment either with or without prejudice which brings us back to this court's obligation to accept the only jurisprudential authority that this court has within this circuit and from the state court would demonstrate the complete applicability of race  judicata to the plaintiff's claims against the city in this case and to judge cost his question to opposing counsel what is the case that supports the concept of the type of claims playing the pla entered at the district court level against the school district on the ground of race chicana and the citation to more versus snowball was based upon the question that this court of the time was undertaking  area analysis as to how texas would have treated the claim of race to the conduct this court got it right in terms of what texas ultimately did with the law but the question was not the same question that's presented here here as opposing counsel's already acknowledged both the claim against the city in state court and the claim against the city in the federal district court arise out of the exact same facts ability here because what judge higginbotham turn to in the flores case was the question of weather if there are different legal theories i'm sorry  different claims does the court provide for occlusive effect and in fact again this court in florida said yes it does because otherwise the theory of race to the condo would be to use judge higginbotham towards rendered a dead letter now all of that said this court has the benefit of its own decision on this very issue on the very issue of a dismissal in texas court for a failure to show governmental waiver of governmental immunity and that is the opinion of one it said specifically in culverts and that the it must be shown that her recommendation was made retaliation for constitutionally protected speech and was the reason for the adverse employment decision that was made by the final decision maker and that's that's the way it goes it's not it's not that that is for ever and ever a bar that that says non decision makers can't be liable second of all with regard to to the the  is no standard of culpability so negligence could come along and so we had a state court case where where the respect to school district was claimed to be negligent because they allowed a a teacher to sit in his room and watch playboy instead of watching kids that's that is dismissed with prejudice then it is has a preclude sympathetic as to that particular issue that was tried only if you have a case that was decided that was dismissed for plea to the jurisdiction where don't know why that was such a struggle but i do know that in this particular case congressman doesn't give a covington ne ne ne haven and they're dead wrong across both they're also wrong about covington geoffrey covington may have been only a sergeant mock slot may have been only a corporal but all clark rules are not created equal and all sergeants are not created equal and what jeffrey covington was he was given the gates the keys to the kingdom in that particular place i mean here's a guy that was when he was he was an eligible to serve as a police officer for years and yet he was and he did and he did and after that the gostin dead did and then i don't know he's good he gets five years and he does thirty days in jail and he's now heading a security unit at a major industry in the county the whole world turned upside down to this particular case in the and i made in the fifty years plus that i've been practicing i'm never seen a case where there has been such a disparity in equities between plaintiff and defendant and where the law think has gotten so wrong in the district court covington never was entitled to cut two to qualified immunity that's what she