REVISED August 11, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20440

JONATHON C. MCINTOSH, DDS

Plaintiff-Appellant

v.

DAVID PARTRIDGE, MD, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before GARWOOD, CLEMENT, and ELROD, Circuit Judges.

GARWOOD, Circuit Judge:

Jonathon McIntosh, DDS, appeals the district court’s April 30, 2007

summary judgment based dismissal of his suit under the Uniformed Services

Employment and Reemployment Rights Act (USERRA), the Due Process and

EqualProtection Clauses of the Fourteenth Amendment, and Texas common law

defamation. For the following reasons, we direct that the USERRA claim be

dismissed for want of jurisdiction, and we otherwise affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-20440

2

FACTS AND PROCEEDINGS BELOW

McIntosh was the director of dentistry and the treating dentist for the

residents at the Richmond State School (RSS), a Texas home for people with

mental and physical disabilities. RSS is a part of the Texas Department of

Aging and Disability Services (TDADS). David Partridge, M.D., was the medical

director of RSS and McIntosh’s direct supervisor; Adalberto Barrera was the

superintendent of RSS. 

McIntosh was a member of the U.S. Navy Reserve, and he was called to

active duty to serve in Iraq and Kuwait in October 2004. RSS contracted with

another dentist, June Sadowsky, D.D.S., M.P.H., to treat the residents during

McIntosh’s tour of duty. Dr. Sadowsky reported that the residents’ teeth were

in poor condition, some having been neglected to the point where they needed to

be cleaned before their conditions could be properly assessed. In early 2005, Dr.

Corinne Scalzitti, D.M.D., conducted an audit of the professional aspects of RSS’s

dental clinic, after which she concluded that decisions made by McIntosh had

impaired the quality of dental care at RSS.

When McIntosh returned from military service in October 2005, he notified

Partridge of his desire to return to his position at RSS. On November 1, 2005,

Partridge told McIntosh that his clinical privileges were suspended pending an

independent investigation into charges of professional incompetence and

violations of the applicable standard of care. Partridge placed McIntosh on paid

leave, and he reported McIntosh’s conduct to the state board of dental

examiners. McIntosh requested a hearing from RSS to review his suspension,

but none was held. On December 23, 2005, McIntosh brought this suit against

Partridge, both individually and in his official capacity as medical director of

RSS, asserting claims under the Uniformed Services Employment and

Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(a), the Equal Protection
No. 07-20440

1 The suit was originally filed in the United States District Court for the Southern

District of Texas, Galveston Division, where it was assigned Civil Action No. G-05-0683. On

June 6, 2006, it was transferred sua sponte by the district judge to the Houston Division where

it was given Cause No. H-06-1968 and assigned to a different district judge. 

3

and the Due Process Clauses ofthe Fourteenth Amendment, and Texas common

law defamation.1

Meanwhile, RSS hired Robert Anderton, D.D.S., J.D., to conduct an

independent investigation of the allegations against McIntosh. As part of this

investigation, he reviewed the residents’ dental health and concluded that many

residents suffered from extensive dental problems that were not properly treated

or recorded on their charts by McIntosh. On August 24, 2006, Barrera provided

McIntosh with a copy of Dr. Anderton’s report and gave him the opportunity to

present a response either in writing or in person by August 31, 2006. McIntosh

declined this offer, but he subsequently requested, and was granted, an

opportunity to submit a written response to the allegations. McIntosh submitted

his response on September 6, 2006. After reviewing McIntosh’s response,

Barrera terminated McIntosh on September 8, 2006. McIntosh filed a formal

grievance with the Health and Human Services Commission on September 25,

2006. The grievance was submitted to a neutral adjudicator. At the request of

both parties, the grievance process was abated on October 18, 2006, pending the

resolution of this lawsuit.

In the proceedings below, McIntosh’s state law defamation claim was

dismissed either upon McIntosh’s own motion or for failure to state a claim

because Partridge, as McIntosh’s employer, had a qualified privilege to report

allegations of misconduct to the state board of dental examiners and he did so

without malice. Partridge then moved for summary judgment on the USERRA,

equal protection, and due process claims, arguing that McIntosh could not

establish that his suspension was motivated by his military service or that his

constitutional rights were violated. McIntosh filed a cross-motion for partial
No. 07-20440

4

summary judgment asserting that his equal protection and due process rights

were violated because Partridge failed to grant him a hearing, as required by

department procedures, before suspending him. Partridge also filed an amended

motion to dismiss contending, inter alia, that the district court lacked subject

matter jurisdiction over the USERRA claims and thatthe Eleventh Amendment

barred claims against Partridge in his official capacity. 

In its April 30, 2007 Opinion on Summary Judgment, the district court

held that 38 U.S.C. § 4323 provided for federal jurisdiction over McIntosh’s

USERRA claim against Partridge, that Texas’s sovereign immunity did not bar

the suit from being brought in federal court, that McIntosh failed to establish

that his termination was related to his military service, and that McIntosh’s due

process and equal protection rights were not violated. On that same day, the

district court entered a judgment that McIntosh take nothing from Partridge in

either his individual or official capacity.

On May 11, 2007, McIntosh filed a motion for reconsideration, which was

denied on May 30, 2007. McIntosh timely filed his Notice of Appeal on June 5,

2007. Pursuant to Federal Rule of Appellate Procedure 44(a), Partridge filed a

notice with this courtthat he would be asserting that McIntosh’s USERRA claim

was barred by the Eleventh Amendment. The United States intervened to

defend the constitutionality of USERRA.

DISCUSSION

On appeal, McIntosh argues that the district court erred by granting

Partridge’s motion for summary judgment as to his USERRA, due process, and

equal protection claims. He also asserts that the district court erred by

improperly considering inadmissible evidence submitted with Partridge’s motion

for summary judgment and by dismissing his state law defamation claim based

upon an affirmative defense that Partridge had failed to raise in his first

responsive pleading.
No. 07-20440

2 While the briefing was unclear on this point, at oral argument, McIntosh conceded

that he was not pursuing a USERRA claim against Partridge in his individual capacity.

5

Standard of Review

This court reviews “Eleventh Amendment immunity determinations, like

other questions of subject matter jurisdiction, de novo as a question of law.”

United States v. Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir. 1999). A district

court’s grant of summary judgmentis reviewed de novounder the same standard

applied by the district court. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725

(5th Cir. 1995). Summary judgment is appropriate when no disputed issue of

material fact exists and the movant is entitled to a judgment as a matter of law.

Id. Fact issues are viewed in the light most favorable to the nonmovant. Id. We

review evidentiary rulings of the district court for abuse of discretion. Celestine

v. Petroleos de Venez. SA, 266 F.3d 343, 349 (5th Cir. 2001).

I. Federal Jurisdiction Over USERRA Claims Brought by an Employee

Against a State as an Employer

USERRA is a federal law that protects employees from being

discriminated against by their employers because of their military service. 38

U.S.C. § 4311. McIntosh argues that he was suspended and ultimately

terminated from his position at RSS because of his military service in Iraq, and

thus he brought a claim of discrimination under USERRA against Partridge, in

his official capacity as medical director of RSS.2 Partridge and the United States

argue that 38 U.S.C. § 4323(b)(2) strips the federal courts of jurisdiction over

suits by an individual against a state as an employer, and that the district court

erred by not dismissing McIntosh’s USERRA claim for lack of subject matter

jurisdiction. 

USERRA’s operative text lays out three separate types of claims and

identifies which courts have jurisdiction over those claims. 
No. 07-20440

3 McIntosh argues that the district court properly exercised jurisdiction because the

TDADS is a political subdivision of the State of Texas, so it should be treated the same as a

private employer. This argument is incorrect. Under Texas law, agencies of the state are

entitled to claim sovereign immunity. Tex. Dep’t of Health v. Hejl, 635 S.W.2d 656, 657-58

(Tex. App.—Austin 1982, no writ). Of course, a state department or agency (and its officers

sued for damages in their official capacity) is considered as being the state for purposes of the

Eleventh Amendment. See, e.g., Hurst v. Texas Dept. of Assistive & Rehab. Servs., 482 F.3d

809 (5th Cir.), cert. denied, 128 S.Ct. 490 (2007). 

6

“(1) In the case of an action against a State (as an employer) or a

private employer commenced by the United States, the district

courts of the United States shall have jurisdiction over the action.

(2) In the case of an action against a State (as an employer) by a

person, the action may be brought in a State court of competent

jurisdiction in accordance with the laws of the State.

(3) In the case of an action against a private employer by a person,

the district courts of the United States shall have jurisdiction of the

action.” 38 U.S.C. § 4323(b). 

All parties agree that McIntosh’s cause of action falls under subsection (b)(2) of

this statute.

In its order, the district court reasoned that, since the statute provides

that suits by individuals against a state “may,” rather than “must,” be brought

in state court, Congress was not restricting jurisdiction to state courts. Based

on its interpretation of the word “may,” and because the previous version of the

statute mandated federal jurisdiction over USERRA claims brought by

individuals against states as employers, the district court concluded that

McIntosh’s USERRA claim could be brought in either state or federal court.3

This reasoning, however, departs from the proper standard for determining

abrogation of sovereign immunity. The Supreme Court has held that “Congress

may abrogate the States’ constitutionally secured immunity from suit in federal

court only by making its intention unmistakably clear in the language of the

statute.” Atascadero State Hosp. v. Scanlon, 105 S.Ct. 3142, 3147 (1985). The

district court erred by assuming that federal jurisdiction existed because the
No. 07-20440

4 McIntosh cites various pieces of legislative history to support his argument that

Congress intended to waive state sovereign immunity, but none of the passages clearly show

congressional intent to allow states to be sued in federal court. An equally plausible reading

of the cited passages is that Congress was attempting to amend USERRA in the wake of

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), to ensure that states could still be

sued, even if those suits had to be brought in state court or by the federal government in

federal court.

7

statutory text did not expressly limit jurisdiction solely to state courts. Under

Atascadero, Congress must affirmatively and clearly grant jurisdiction to federal

courts to abrogate state sovereign immunity. 

USERRA’s jurisdictional statute provides that in “an action against a

State (as an employer) by a person, the action may be brought in a State court.”

38 U.S.C. § 4323(b)(2) (emphasis added). This language provides no indication

that Congress intended for these cases to be brought in federal court.4 This

omission is significant when compared with Congress’s explicit provision for

federal jurisdiction in cases where the federal government brings an USERRA

claim or when the defendant is a private employer. 38 U.S.C. § 4323(b)(1), (3).

These provisions demonstrate that Congress knew how to provide for federal

jurisdiction but specifically chose not to do so for USERRA claims brought by

individuals against states as employers. The Seventh Circuit has interpreted

the statute in a similar manner. See Velasquez v. Frapwell, 165 F.3d 593, 594

(7th Cir. 1999) (per curiam) (holding that “Congress’s intention to limit USERRA

suits against states to state courts is unmistakable”).

This interpretation is also supported by a comparison of the current

statute with its prior version. Previously, Congress had authorized the United

States district courts to exercise jurisdiction over USERRA claims, with claims

against a state as an employer to be brought in “any district in which the State

exercises any authority or carries out any function.” 38 U.S.C. § 4323(b)

(amended 1998). By amending the statute to its current form, Congress removed

the blanket grant of jurisdiction to federal courts over all USERRA claims, and
No. 07-20440

5 Since we hold that § 4323(b)(2) does not authorize federal jurisdiction over McIntosh’s

USERRA claim, we do not address whether § 4323(b)(2) unconstitutionally abrogates Texas’s

sovereign immunity in this case. We also do not address whether the district court erred by

granting Partridge’s motion for summary judgment with regard to McIntosh’s USERRA claim.

8

replaced it with a provision that only mentions the ability of individuals to bring

claims against states as employers in state court. If we were to hold that the

removal ofthe statutory language authorizing federal jurisdiction for these suits

did not actually remove federal jurisdiction, we would be violating a basic tenant

of statutory construction: “when Congress amends a law the amendment is

made to effect some purpose.” Argosy Ltd. v. Hennigan, 404 F.2d 14, 20 (5th Cir.

1968). 

After examining the text of the statute in its current and prior forms, we

see no “unmistakably clear” intention by Congress to abrogate state sovereign

immunity by allowing individuals to bring USERRA claims against states as

employers in federal court. Therefore, this court does not have jurisdiction to

hear McIntosh’s USERRA claim.5

II. Did the District Court Err by ConsideringPartridge’s Summary Judgment

Evidence?

McIntosh objects that the district court erred by considering five pieces of

summary judgment evidence: Dr. Anderton’s report on his investigation of the

allegations of professional misconduct against McIntosh, an internal e-mail

reporting the poor condition of RSS residents’ teeth, Partridge’s letter to the

state dental board reporting McIntosh’s alleged professional misconduct, the

state dental board’s response to Partridge’s letter, and Dr. Scalzitti’s audit ofthe

professional aspects of RSS’s dental clinic. McIntosh argues that the e-mail,the

letters to and from the state dental board, and Dr. Scalzitti’s audit are not

competent summary judgment evidence and were not properly authenticated.

He also asserts that Dr. Anderton’s report does not comply with Federal Rule of

Civil Procedure 26(a)(2)(B). 
No. 07-20440

6 McIntosh also argues that these documents were not properly authenticated as

certified domestic records of regularly conducted activity. FED. R. EVID. 902(11). McIntosh is

incorrect. Rule 902(11) sets out requirements for self-authenticating documents that may be

introduced without extrinsic evidence of their authenticity. Partridge submitted affidavits

from Dr. Anderton, Barrera, andPartridge properly authenticating each ofthe documentswith

his reply brief in support of summary judgment. This extrinsic evidence is sufficient to

authenticate each document so there is no need for Partridge to prove that they are self

authenticating under Rule 902(11).

9

At the summary judgment phase, affidavits must set out facts that would

be admissible in evidence at trial. FED R. CIV.P. 56(e)(1). McIntosh asserts that

four of five pieces of evidence contained inadmissible hearsay. This objection is

without merit. The internal e-mail and Dr. Scalzitti’s audit go to show why

Partridge believed that McIntosh was inadequately performing his duties at

RSS, which is relevantto the USERRA claim because itis evidence of Partridge’s

motivation for suspending McIntosh. Since each of the documents is admissible

for a relevant purpose other than the truth of the statements contained within

them, they are not inadmissible hearsay. FED. R. EVID. 801(c), 802. Partridge’s

statement contained in his letter to the dental board forms the basis for

McIntosh’s defamation claim; the reply from the state dental board confirms that

it received the allegedly defamatory statements; and there is no indication that

admission of either was harmful to McIntosh.

McIntosh’s objection that Dr. Anderton’s report was not submitted in

accordance with Federal Rule of Civil Procedure 26(a)(2)(B), which governs

expert reports, is similarly misplaced. Dr. Anderton’s report investigated

complaints about McIntosh’s performance as head dentist of RSS, and it

concluded that he had not been properly performing his duties. Barrera

partially based his decision to terminate McIntosh on the evaluation contained

in this report. Therefore, it is admissible as evidence that Barrera terminated

McIntosh due to his poor performance, not his military service. For this purpose,

it is not necessary for the report to meet the requirements of Rule 26(a)(2)(B).6
No. 07-20440

7 McIntosh claims that he was denied his right to a hearing at two points: before he was

suspended with pay on November 1, 2005 and before he was terminated on September 8, 2006.

A review of the record, however, indicates that Partridge was only responsible for the decision

to suspend McIntosh with pay. There is no evidence in the record that Partridge made the

decision to terminate McIntosh. That decision was made by Barrera (not a party here). Since

McIntosh only asserts claims against Partridge, we only examine whether his decision to

suspend McIntosh with pay before granting him a hearing violated the Due Process Clause.

8 Once qualified immunity is invoked, it becomes the plaintiff’s burden to rebut it.

McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam). In

order to rebut qualified immunity, the plaintiff must identify in the record a sufficient factual

basis for a reasonable jury to conclude: “(1) that the defendant violated the plaintiff’s

constitutional rights and (2)thatthe violation was objectively unreasonable.” Bolton, 472 F.3d

at 265-66. The reasonableness inquiry asks whether the “contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 107 S.Ct. 3034, 3039 (1987).

10

Consequently,the district court did not abuse its discretion by considering

these pieces of evidence. Furthermore, even if the consideration of the evidence

was an error, McIntosh has not demonstrated how that error would have harmed

him, so any error would not provide grounds for reversal. Richardson v.

Oldham, 12 F.3d 1373, 1379 (5th Cir. 1994).

III. Did the District Court Err in Granting Summary Judgment on McIntosh’s

Due Process and Equal Protection Claims? 

McIntosh argues that Partridge violated his rights under the Due Process

and Equal Protection Clauses of the Fourteenth Amendment by failing to

provide him with a neutral administrative hearing as required by TDADS’s

Employee Misconduct Registry Handbook (the Handbook) before he was

suspended.7 McIntosh purportedly brings these causes of action against

Partridge in both his individual and official capacities. To the extent McIntosh’s

claim is against Partridge in his individual capacity for damages under 42

U.S.C. § 1983, Partridge is entitled to the defense of qualified immunity. Bolton

v. City of Dallas, 472 F.3d 261, 265 (5th Cir. 2006).8 To the extent that McIntosh

brings these claims against Partridge in his official capacity for monetary

damages from the state treasury, they are barred by Texas’s sovereign
No. 07-20440

9 McIntosh also seeks injunctive relief to return him to the position he would have been

in but for the due process violation he claims. This request is premature as his grievance

before the Health and Human Services Comission (not a party here) regarding his termination

is currently held in abeyance, with his consent, pending the outcome of this litigation.

Furthermore, McIntosh has presented no evidence that Partridge has the authority to provide

him with the relief he seeks by injunction.

10 Partridge does not dispute that McIntosh had a property interest in his employment,

but he disputes that McIntosh’s interest was extinguished when he was placed on paid leave.

11

immunity.9 United Carolina Bank v. Bd. of Regents of Stephen F. Austin State

Univ., 665 F.2d 553, 560 (5th Cir. 1982). 

Partridge contends that McIntosh is not covered by the Handbook, so he

was not entitled to the administrative hearing that it requires. Alternatively,

he argues that a violation of state procedures is insufficient to prove a violation

of McIntosh’s federal constitutional right to due process and that McIntosh

received all the process the Constitution requires. The district court held that

McIntosh had a property interest in his job10 but that he was not denied due

process because the state’s interest in protecting the residents of RSS

outweighed McIntosh’s economic interest in his job because the state’s actions

were taken after the allegations were “thoroughly researched, cross-checked, and

discussed with him.”

McIntosh’s assertion that his due process rights were violated because he

was denied a hearing provided for by the Handbook is incorrect because “a

violation of state law is neither a necessary nor a sufficient condition for a

finding of a due process violation.” Stern v. Tarrant County Hosp. Dist., 778 F.2d

1052, 1059 (5th Cir. 1985) (en banc). “The fundamental issue in due process law

is not whether state officials violated state law, but whether they provided the

plaintiff with the [federal] constitutional minima.” Gerhart v. Hayes, 201 F.3d

646, 650 (5th Cir. 2000). Therefore, the issue is whether McIntosh received

sufficient process to meet the requirements of the federal Due Process Clause

before his suspension with pay.
No. 07-20440

12

To determine what process is constitutionally due,the Supreme Court has

advised us to balance three factors: “First, the private interest that will be

affected by the official action; second, the risk of an erroneous deprivation of

such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the Government’s

interest . . . .” Mathews v. Eldridge, 96 S.Ct. 893, 903 (1976). In a case dealing

with the suspension of a tenured employee, the Supreme Court held that “[a]n

important government interest, accompanied by a substantial assurance that the

deprivation is not baseless or unwarranted, may in limited cases demanding

prompt action justify postponing the opportunity to be heard until after the

initial deprivation.” FDIC v. Mallen, 108 S.Ct. 1780, 1787-88 (1988); see, e.g.,

Gilbert v. Homar, 117 S.Ct. 1807, 1813-14 (1997) (holding that a state’s interest

in preserving the integrity of its police force warranted suspending a recently

indicted officer without pay before he was given a hearing); Barry v. Barchi, 99

S.Ct. 2642, 2649-50 (1979) (holding that a state’s interest in preserving the

integrity of the sport of horse racing was sufficiently important to justify a brief

period of suspension prior to affording a suspended trainer a hearing).

In this case, McIntosh’s interest was in maintaining his job, and Texas’s

interest was in protecting the dental health of RSS’s mentally and physically

disabled residents. McIntosh’s interest in his job is important, but since he was

suspended with pay, his hardship was not as strong as that suffered by the

suspended officer in Gilbert. The state’s interest here was at least as strong as

the interest in preserving the integrity of the police force or the horse racing

industry in Gilbert and Barry. Thus, the balance of the interests favors Texas.

The risk of erroneous deprivation was also significantly reduced because

two dentists had already informed Partridge that McIntosh’s actions had

harmed the dental health of residents at RSS before he was suspended.

Additionally, RSS hired Dr. Anderton to perform an independent investigation
No. 07-20440

11 It is also worth noting that when Barrera offered McIntosh an opportunity to respond

to Dr. Anderton’s report, McIntosh attempted to have the hearing enjoined by the district

court.

12 In his brief, McIntosh occasionally mentions an “equal protection” claim in

conjunction with his due process claim, but this claim is inadequately briefed and is hence

waived. See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007). In fact,

it is unclear on what basis McIntosh is even asserting he was denied equal protection. In any

event, we note that the summary judgment evidence does not support any species of equal

protection claim. As noted by the district court, Partridge has presented a great deal of

evidence to support his assertion that McIntosh was suspended and terminated for poor job

performance, and McIntoshhas presentedno evidence, other thanthe timing of his suspension,

to contradict this.

13

into the allegations against McIntosh and allowed McIntosh to respond to the

conclusions of the report before a decision was made to remove him from paid

leave and terminate his employment. Furthermore, the hearing requested by

McIntosh likely would not have significantly reduced the risk of erroneous

deprivation any more than the procedures that were ultimately used.11 So while

this cross-checking may not have provided the same level of assurance as the

grand jury indictments obtained in Gilbert and Mallen, it was a significant

attempt to make sure that McIntosh’s suspension was not “baseless or

unwarranted.” 

Given the applicable standard and the precautions taken by Partridge and

RSS, McIntosh’s placement on paid leave without a hearing did not violate his

due process rights. Therefore, his claim fails on the merits. But even assuming

that McIntosh has presented sufficient evidence to support a finding that his due

process rights were violated, he still has not rebutted Partridge’s defense of

qualified immunity because he has not shown that a reasonable person, in

Partridge’s position, would have understood that he was violating McIntosh’s

rights. Consequently, the district court properly granted summary judgment on

McIntosh’s due process claim against Partridge in his individual capacity. Any

such Section 1983 damages claim against Partridge in his official capacity is

barred by the Eleventh Amendment.12
No. 07-20440

13 The Eleventh Amendment bars McIntosh from asserting his state law defamation

claim against Partridge in his official capacity in federal court. See Pennhurst State Sch. &

Hosp. v. Halderman, 104 S.Ct. 900, 919 (1984) (holding that federal courts are barred by the

Eleventh Amendment from hearing state law claims against state officials in their official

capacity under supplemental jurisdiction).

14 The opinion recites in this connection that “As McIntosh’s employer, the agency had

a qualified privilege to make the statements to the state’s dental examiners and made them

without malice.” (emphasis added).

14

IV. Did the District Court Err in Dismissing McIntosh’s Defamation Claim?

McIntosh next argues that the district court erred by dismissing his state

law defamation claim because Partridge failed to prove absence of malice and to

plead the affirmative defense of qualified privilege in his first responsive

pleading. To the extent that McIntosh’s defamation claim was brought against

Partridge in his individual capacity, Partridge asserted official immunity.13

The record is unclear as to how McIntosh’s defamation claim was

dismissed below. The docket sheet and a Conference Memorandum dated

August 4, 2006, both state that the district court dismissed McIntosh’s

defamation claim on McIntosh’s own oral motion. McIntosh did not challenge

this characterization of the disposition of his claim at any point below and only

disputed this issue on appeal once it was brought to his counsel’s attention at

oral argument. McIntosh’s failure to raise this issue below waives the issue on

appeal, so it might ordinarily be a sufficient basis for affirming the district

court’s dismissal of his defamation claim. Kinash v. Callahan, 129 F.3d 736, 739

n.10 (5th Cir. 1997) (per curiam). The district court’s April 30, 2007 “Opinion on

Summary Judgment” , however, casts doubt upon that disposition of the claim

by stating that “[t]he defamation claim was dismissed for failure to state a

claim” because Partridge had a qualified privilege to make the statements.14

Given this discrepancy, we will also consider whether the district court’s decision

can be affirmed on a basis other than the August 4, 2006 order.
No. 07-20440

15 In his “Motion to Dismiss and . . . Original Answer and Affirmative Defenses”,

Partridge asserted qualified immunity as a defense to the federal causes of action against him

and he also asserted “official immunity” as to the Texas law claims against him, but he did not

assert qualified privilege, which is a Texas common law defense to defamation.

16 If the facts show a relationship giving rise to the qualified privilege, the plaintiff has

the burden of proof to show that the statement was made with actual malice, thus defeating

the privilege. See, e.g., Duffy v. Leading Edge Products, 44 F.3d 308, 313-14 (5th Cir. 1995);

Dun and Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 898 (Tex. 1970). See also, e.g., Wheeler v.

Miller, 168 F.3d 241, 253 (5th Cir. 1999); Burch v. Coca-Cola, 119 F.3d 305, 323-24 (5th Cir.

1997).

15

McIntosh correctly objects that Partridge failed to raise a qualified

privilege defense in his first responsive pleading.15 In Texas, qualified privilege

is an affirmative defense, Denton Publishing Co. v. Boyd, 460 S.W.2d 881, 884

(Tex. 1970), and Partridge failed to raise itin his answer as required by Rule 8(c).

Moreover, McIntosh’s complaint alleged that Partridge made the statements with

malice, and if the plaintiff establishes malice the privilege is defeated.16

Therefore,the district court erred by dismissing McIntosh’s defamation claim for

failure to state a claim under Rule 12(b)(6) based on qualified privilege.

Nevertheless, this court may affirm a district court’s granting of a motion

to dismiss on a basis not relied upon by the district court, and Partridge properly

raised the defense of official immunity in his answer. Gulf Guar. Life Ins. Co. v.

Conn. Gen. Life Ins. Co., 304 F.3d 476, 486 (5th Cir. 2002). In Texas, “[a]

governmental employee is entitled to official immunity: (1) for the performance

of discretionary duties; (2) within the scope of the employee’s authority; (3)

provided the employee acts in good faith.” Univ. of Houston v. Clark, 38 S.W.3d

578, 580 (Tex. 2000). McIntosh does not dispute that Partridge was performing

discretionary duties within the scope of his employment when he allegedly

defamed McIntosh by reporting him to the state dental board, but he claims that

these statements were false and that Partridge made them intentionally,

willfully, and maliciously. 
No. 07-20440

16

Although the district court stated that it dismissed for failure to state a

claim, it appears that it considered evidence outside the pleading because it

concluded that Partridge acted without malice, contrary to McIntosh’s

allegations. Since the district court went beyond the scope of the pleadings, we

will review its dismissal as a grant of summary judgment. Carpenters Local

Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 500 (5th Cir. 1982);

Bossard v. Exxon Corp., 559 F.2d 1040, 1041 (5th Cir. 1977).

While “[w]e may affirm a summary judgment on any ground supported by

the record,” Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir.

2001),this principle does not of itself generally justify affirmance on a ground not

raised below. F.D.I.C. v. Laguarta, 939 F.2d 1231, 1240 (5th Cir. 1991).

Nevertheless, affirmance on such a ground is proper where the lack of notice to

the nonmovant is harmless, such as where “‘the [unraised] issues were implicit

or included in those raised below or the evidence in support thereof, or . . . the

record appears to be adequately developed in respect thereto.’” F.D.I.C. v. Lee,

130 F.3d 1139, 1142 (5th Cir. 1997) (quoting Laguarta at 1240 & n.20). See also,

e.g., Love v. National Medical Enterprises, 230 F.3d 765, 771 (5th Cir. 2000);

Nowlin v. Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir. 1994); Leatherman

v. Tarrant County Narcotics Intelligence & Coordination Unit, 28 F.3d 1388,

1397-98 (5th Cir. 1994). 

Under Texas law, “[a] plaintiff attempting to controvert the employee’s

summary-judgment evidence on good faith must show that no reasonable person

in the employee’s position could have thought that the facts justified the

employee’s actions.” Cloud v. McKinney, 228 S.W.3d 326, 336 (Tex. App.—Austin

2007, no pet.). McIntosh has presented no evidence that shows that a reasonable

employee in Partridge’s position would not have reported to the state dental

board Dr. Sadowski’s and Dr. Scalzitti’s allegations that McIntosh committed

professional misconduct. Furthermore, while the district court did not
No. 07-20440

17 McIntosh timely requested, and is entitled under 5th Cir. R. 27.2, to three-judge

panel review, which we hereby provide. 

17

specifically address the defense of official immunity, such defense was properly

pled, the court properly held that Partridge was entitled to qualified immunity

as to McIntosh’s federal claims, and “Texas law of official immunity is

substantially the same as federal qualified immunity law.” Wren v. Towe, 130

F.3d 1154, 1160 (5th Cir. 1997) (per curiam); see also City of Lancaster v.

Chambers, 883 S.W.2d 650, 656 (Tex. 1994).

The evidence on official immunity, as well as that on qualified immunity

(and on qualified privilege) appears to be fully developed. McIntosh has at no

time suggested other evidence that he had and would have tendered below (or

sought discovery respecting) had official immunity, and not simply qualified

immunity, been raised as a ground for summary judgment (or had qualified

privilege been properly raised). The record evidence shows as a matter of law

that Partridge was entitled to official immunity with respect to his statements

to the state dental board (and that those statements were made without malice)

and there is no evidence to support a contrary finding. We affirm the dismissal

of McIntosh’s defamation claim.

V. Motion to Supplement Record

Finally, McIntosh asserts that he should have been permitted to

supplement the record with a copy of a May 2002 letter prepared by Partridge

recommending McIntosh for a position as an officer in the U.S. Naval Reserve

that was never tendered to the district court. Appellees opposed the motion and

it was denied initially by the Clerk under 5th Cir. Local Rule 27.1.11 and again

by the order of a single circuit judge on September 17, 2007.17 As a general rule,

this court “will not enlarge the record on appeal with evidence not before the

district court.” Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992).

McIntosh has not provided sufficient justification to depart from this general
No. 07-20440

18

rule. Therefore, his August 20, 2007 motion to supplement the record was

properly denied.

CONCLUSION

For the foregoing reasons, the judgment of the district court is VACATED

with respectto McIntosh’s USERRA claim and that claim is hereby DISMISSED

FOR WANT OF JURISDICTION; the district court’s judgment in all other

respects is AFFIRMED.