1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20980

LEWIS ANDERSON,

Plaintiff-Appellant,

VERSUS

PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE

MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,

JR., FRED ROBERTS and FREDRICK SCHNEIDER,

Defendants-Appellees.

consolidated with

No. 98-20384

LEWIS ANDERSON,

Plaintiff-Appellee,

VERSUS

PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE

MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,

JR., FRED ROBERTS and FREDRICK SCHNEIDER,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

August 5, 1999

Before DAVIS, STEWART and PARKER

, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Lewis Anderson (“Anderson”), appeals the dismissal of his

federal claims against defendants Pasadena Independent School1 The p rocedural history of Anderson’s claims related to age

discrimination are not detailed here because those claims are not

the subject of this appeal.

2 District (“PISD”), PISD Superintendent Frederick Schneider and PISD

School Board members Nelda Sullivan, Vickie Morgan, Ted Sullivan,

Carmen Orozco, Bob Blair, Marshall Kendrick, Jr., and Fred Roberts.

We affirm in part, reverse in part and remand this case to the

district court. In a consolidated appeal, defendants appeal a

monetary sanction related to an order for remand to state court.

We dismiss the appeal of sanctions for lack of jurisdiction.

I. PROCEEDINGS

On November 6, 1995, Anderson filed suit pursuant to 42 U.S.C.

§ 1983 alleging that the defendants took adverse employment action

against him because he opposed a school bond election and an

admin istrative reorganization. He claimed violation of his free

speech rights, and asserted state law claims as well. 1

The individual defendants moved to dismiss the suit, pursuant

to Federal Rule of Civil Procedure 12(b)(6), on the basis of

qualified immunity and requested the district court to prohibit

discovery until the qualified immunity claim was resolved. On May

17, 1996, after a hearing, the district court ordered Anderson to

replead his claims with particularity in order to overc ome

defendants’ assertions of qualified immunity. Anderson filed his

Second Ame nded Complaint on June 21, 1996, adding claims that

defendants violated his rights to freedom of association and due

process. The individual defendants again filed for Rule 12(b)(6)

dismissal claiming qualified immunity. The magistrate judge2 T he original 1995 case was assigned to the Honorable Sim

Lake. Upon removal in 1998, the case was assigned to the Honorable

Kenneth Hoyt. We refer in this opinion to actions taken by the

“district court” without attempting to designate which judge signed

any particular order.

3 entered a memorandum and recommendation, Anderson filed objections,

and the magistrate judge issued a clarification. On April 2, 1997,

the district c ourt granted the individual defendants’ motion to

dismiss, adopting the magistrate judge’s conclusion s that 1) in

suits against public officials, the defense of qualified immunity

mandates a heightened pleading standard which Anderson’s pleadings

did not meet, 2) the speech in question did involve a matter of

public concer n, and 3) Anderson failed to establish that his

interest in free speech outweighed the school district’s interest

in the smooth and efficient operation of the district. The

district court based its dismissal on the outcome of the First

Amendment balancing test and never directly ruled on the individual

defendants’ claims of qualified immunity.

PISD subsequently filed a motion to dismiss , which the

magistrate judge recommended granting on essentially the same basis

as the earlier order of dismissal. The district court adopted that

recommendation, dismissed Anderson’s federal claims with prejudice

and Anderson’s pendant state law claims without prejudice.

Anderson refil ed his state law claims in Texas state court.

D efendants removed the action 2 and Anderson moved to remand. The

district court remanded the case to state court and ordered the

defendants to pay $2000 in court costs, expenses and attorneys fees

for the improper removal of the case, which the district court4

found was done for the purpose of delay. Defendants filed a motion

to reconsider remand. The district court denied the motion to

reconsider and ordered defendants to pay $2000 “as reasonable

attorney’s fees an d expenses incurred in filing the motion to

reconsider motion to remand.”

Anderson appeals the dismissal of his federal claims. In a

consolidated appe al, defendants appeal the sanctions imposed for

improper removal.

II. FACTS

Anderson’s Second Amended complaint alleges the following

facts.

Anderson was first hired by PISD in 1962 as a teacher. He

received promotions through the years, holding various

administrative positions in PISD’s special education program. In

1990, Anderson wa s promoted to Area Superintendent. During the

first 33 years of employment with PISD, Anderson never received a

negative evaluation.

In 1994 and 1 995, Anderson voiced criticism of an upcoming

bond election which the School Board and the Superintendent

favored. Anderson also supported a candidate who was running

against an incumbent board member who was up for re-election.

There after, defendants began efforts to oust Anderson from his

position.

In April 1995, Superintendent Schneider advised Anderson that

his assistant Michael Fowler was being demoted and that a new

Deputy Superintendent position was being created. Anderson would5

report to the new Deputy instead of directly to Superintendent

Schneider, as he had in the past. Anderson was not eligible to

apply for the newly created position because it required prior

experience as a school principal, which Anderson did not have. The

new position was filled without adhering to the PISD policy of

advertising job openings.

During the summer of 1995, the board hired a private detective

who conducted surveillance of A nderson, a non-incumbent school

board candidate who Anderson supported and some of Anderson’s other

associates. In August of 1995, Schneider called Anderson to his

office and proposed that Anderson agree to resign (relinquishing

his contract right to two additional years of employment at more

that $70,000 per year) and to “publicly and privately support the

proposed election t o issue bonds” in exchange for $30,000.

Anderson was told that if he did not agree, he would be reassigned

to transportation, food services or maintenance -- all low-level,

dead end jobs. Anderson refused to sign the agreement, stating

that he felt that it was illegal.

A few days after his refusal, Anderson was reassigned to the

newly created position of Associate Superintendent fo r Project

Management and given responsibilities which had pr eviously been

handled, for the most part, by a secretary. Again, the position

was not advertised in accordance with PISD policy. Anderson’s pay

was not changed.

On October 3 0, 1995, Anderson received his first negative

evaluation in thirty-three years with PISD, in which Superintendent6

Sch neider directly reprimanded Anderson for speaking out on the

bond election and PISD’s reorganization. Schneider made it clear

that Anderson was free to speak out on these issues “outside of

work” but that “such comments at work are inappropriate, disruptive

and will not be tolerated.” During the same time period, the

administration spoke out in support of the bond election during

mandatory faculty meetings and other district functions, making

PISD work- time a public forum for considering the bond election

issues.

Anderson contends that the allegedly unconstitutional actions

were taken by the defendants, individually and acting as a body,

but that he cannot know, prior to discovery, precis ely who

instigated or authorized the actions because the actions originated

in closed board meetings.

III. RULE 12(b)(6) ORDERS OF DISMISSAL

A. Standard of review

A Rule 12(b)(6) order of dismissal for failure to state a

claim on which relief can be granted is reviewed de novo

, and “will

not be affirmed unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” B lackburn v. City of Mars hall , 42 F.3d

925, 931 (5th Cir. 1995).

In reviewing defendants’ claim of qualified immunity, we must

first ascertain whe ther Anderson has sufficiently asserted the

violation of a constitutional right. S ee Rankin v. Klevenhagen

, 5

F.3d 103, 105 (5th Cir. 1993). Second, we must determine whether7

defendants’ c onduct was objectively reasonable in light of law

clearly established at the time of the incident. See Salas v.

Carpenter , 980 F.2d 299, 310 (5th Cir. 1992).

B. Heightened Pleading Requirement – Individual Board Members

The magistrate judge’s Memorandum and Recommendation, adopted

by the district court, states that “Anderson has not satisfied the

heightened pleadi ng standard in order to overcome the defense of

qualified immunity. Accordingly, it is RECOMMENDED that Anderson’s

claims against the individual board members be DISMISSED.” The

magistra te judge then goes on to recommend dismissal of these

defendants based on an independent, alternative ground. On appeal,

Anderson challenges the d i strict court’s ruling regarding the

“heightened pleading standard,” contending that his Second Amended

Complaint was sufficient to state a cause of action and to overcome

the defendants’ claims of qualified immunity.

The S u preme Court abrogated the Fifth Circuit heightened

pleading requirement for actions against municipalities, but did

not consider whether qualified immunity jurisprudence would require

heightened pleading in cases against individual government

officials. S ee Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit

, 507 U.S. 163, 166-67 (1993). This court

there after declined to abandon the requirement, articulated in

Elliott v. Perez 751 F.2d 1472 (5th Cir. 1985), that plaintiffs

suing governmental officials in their individual capa cities must

allege specific conduct giving rise to a constitutional violation.

See Schultea v. Wood

, 47 F.3d 1427, 1434 (5th Cir. 1995). However,8

no heightened pleading is required in actions against ind ividual

defendants in their official capacities, because “official-capacity

lawsuits are typically an alternative means of pleading an action

against the governmental entity involved[.]” Baker v. Putnal , 75

F.3d 190, 195 (5th Cir. 1996). Anderson sued the board members and

the superintendent in their individual capacities only. In order

to survive, those actions “must be pleaded with ‘factual detail and

particularity,’ not mere conclusionary allegations.” J ackson v.

Widnall , 99 F.3d 710, 715-16 (5th Cir. 1996)(quoting Schultea, 47

F.3d at 1430).

In order to state a cause of action under § 1983, Anderson

must identify defendants who were either personally involved in the

constitutional violation or whose acts ar e causally connected to

the constitutional violation alleged. S ee Woods v. Edwards , 51

F.3d 577, 583 (5t h Cir. 1995). It is not enough to allege that

government officials with no direct contact with a plaintiff are

responsible for acts of their subordinates. S ee id. Anderson’s

Se cond Amended complaint alleges that the board members and the

superintendent made specifically enumerated decisions that

adversely impacted his employment in viola tion of his

constitutio nal rights. Anderson candidly admits that the

defendants made dec isions in closed meetings that precluded

Anderson from knowing, prior to discovery, whether each defendant

voted for or dissented from those d ecisions. However, Anderson

makes no attempt to hold the individual defe ndants liable for

actions or decision of their subordinates with which they had no9

involvement, but rather seeks to establish each defendant’s

responsibility for his or her own actions. We find that Anderson

pleaded with sufficient particularity facts establishing a causal

connection between defendants’ ac tions and decisions and the

alleged constitutional violations. We therefore hold that the

district court’s conclusion that Anderson’s c omplaint lacked the

factual specificity required to overcome the defense of qualified

immunity was error.

C. First Amendment Claims

It is well established that a state may not discharge,

discipline, or otherwise retaliat e against a public employee for

exercising his First Amendment right to free speech. S ee Rankin v.

McPherson

, 483 U.S. 378, 383 (1987). However, a public employee’s

right to free speech is limited when it conflicts with his role as

a public employee . See Kinsey v. Salado Indep. School Dist. , 950

F.2d 988, 992 (5th Cir. 1992). In order for speech to be entitled

to protection, the plaintiff must establish that h is speech

addressed a matter of public concern. See Click v. Copeland , 970

F.2d 106, 111 (1992)(citing Connick v. Myers

, 461 U.S. 138, 146-47

(1983)). If the plaintiff’s speech does not relate to a matter of

public co ncern, the court’s inquiry ends. S ee id. I f, however,

the court concludes that the speech at issue meets the threshold

inquiry, then the court must balance “the interes ts of the

[employee], as a citizen, in commenting upon matters of public

concern [against] the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through10

its employees.’” Id. (quoting Pickering v. Board of Educ. Of Tp.

High School Dist. , 391 U.S. 563, 568 (1968).

When a plaintiff’s claims arise under both freedom of speech

and freedom of association, as in the case at bar, the freedom of

association claims are analyzed under the same Pickering balancing

test used to determine the success of the freedom of speech claims.

See O’Hare Truck Serv., Inc. v. City of Northlake , 518 U.S. 712

(1996). We therefore balance Anderson’s First Amendment rights

of free speech an d free association against the defendants’

interests in efficiently providing public education to the students

of PISD.

We begin by noting that whether Anderson’s speech addressed a

matter of public concern is a question of law. S ee Tompkins v.

Vickers

, 26 F.3d 603, 606 (5th Cir. 1994). The district court

concluded, and the parties do not disp ute on appeal, that

Anderson’s speech regarding the district bond election and the job

performance of the individual defendants involved matters of public

concern. We agree.

We move then to the focus of this appeal, the Pickering

balance struc k by the district court, remaining mindful that we

must “‘tailor the analy sis to the particular facts of each

case[.]’” N ieto v. San Perlita Indep. School Dist.

, 894 F.2d 174,

180 (5th Cir. 1990)(quoting Matherne v. Wilson , 851 F.2d 752, 760

n.48 (5th Cir. 1988)).

Central to the district court’s decision is its reliance on

Kinsey v. Salado Indep. School Dist.

, 950 F.2d 988 (5th Cir. 1992),11

which it found factually analogous to the case at bar. In K insey

,

a suspended public school sup erintendent brought a § 1983 action

against the school board alleging violation of his Fi rst and

Fourteenth Amendment rights to speak out concerning the performance

of elected school board members. S ee id. at 991. The district

court granted summary judgment for defendants on K insey’s

Fourteenth Amendm ent claims and, after trial, granted a judgment

notwithstanding the verdict on his First Amendment claims. S ee id.

at 991-92. The Fifth Circuit en banc court affirmed. See id. at

997.

Like the district court, we conclude that K insey provides

guidance by setting out the legal framework for analyzing

Anderson’s First Amendment claims. However, we find it impossible

to dispose of Anderson’s claims at this stage of the proceedings on

the basis of a Kinsey analysis because we do not have the benefit

of facts sufficient to flesh out the framework.

Kinsey instructs us to consider w hether a close working

relationship between Anderson and the i ndividual defendants is

essential. S ee id

. at 995. Because Texas law provides for a

school board and a superintendent for each public school district,

we examined the applicable statutory language to disc ern the

parameters of the relationship between Kinsey and the board member

defendants. See id. There is no provision in Texas law setting out

the duties and responsibilities of “Area S uperintendent” or

“Associate Superintendent for Pro ject Management” to give us

guidance in this case. Further, the trial record in K insey12

established that “[o]ne of Kinsey’s primary duties was to advise

the Board,” a nd to attend executive board sessions and offer

opinions and recommendations to guide it s decisions. S ee id

.

Kinsey also handled the School District finances and made

recommendations on hiring teachers and principals. S ee id

. at 996.

Kinsey was custodian of the School District’s confidential records

including personnel files, sealed bids, working papers on proposed

rules and policies, and student records, and was called on to

advise the Board concerning these and other confidential matters.

See id. R elying on the well developed, fact intensive trial

r ecord, we concluded that it was essential for Kinsey to h ave a

close working relationship with the defendant board members and

that their relationship had been di srupted to the point of

precluding effective performance by Kinsey. See id.

In contrast, the district court in the case at bar considered

Anderson’s statement in his Secon d Amended Complaint that he

“supervised half of the district campuses,” Anderson’s

characterization of his position as “high profile” and “second-incommand,” and his participation in the superintendent’s “informal

cabinet” to conclude that Anderson would not be able to effectively

carry out h is duties while opposing the bond election and

supporting a non-incumbent candidate for the board. As illustrated

by the analysis in Kinsey, Anderson’s ability to effectively carry

out his duties is a fact-intensive inquiry that requires, at a

minimum, evidence or stipulations concerning what those duties

were. Without benefit of summary judgment evidence, trial, or even13

rudimentary discovery, the record in this case is not sufficient to

perform a Pic kering balancing test. In addition, Anderson’s

complaint can be read to allege that he previously supported some

of the present board members when they were “non-in cumbent” and

continued to successfully fulfill his responsibilities to the

school district. We must therefore reverse the trial court’s

dismissal of Anderson’s First Amendment claims.

D. Due Process Claims

Anderson alleges that his rights to due process were abridged

when he was demoted from Area Superintendent, which required a

certification, to Associate Superintendent, which did not, because

positions lacking a certification requirement do not carry the

benefits of a written employment contract which he enjoyed as Area

Superintendent. The district court rejected this argument holding

that Anderson did not plead a constitutionally protected property

interest in any non-economic benefit and that, because his salary

was not reduced when he was reassigne d, he had alleged no due

process violation.

On appeal, Anderson makes a conclusory statement that he has

pleaded a due process right associated with school employment

contracts, citing to a page in Kinsey that does not exist, and to

the “fact,” which does not appear in the record before us, that he

has subsequently been forced into early retirement. In K insey, we

rejected a due process property interest claim to the non-economic

benefit of duties and responsibilities of the position of

superintendent. S ee K insey , 950 F.2d at 996-97. There is no14

mention in Kinsey of Anderson’s t heory of due process rights

growing out of school employment contrac ts. We see no basis in

Anderson’s Second Amended Complaint, in the briefs or in pertinent

authority for reversing the district court’s Rule 12(b)(6)

dismissal of Anderson’s due process claims.

IV. SANCTIONS

After the distr ict court dismissed Anderson’s state claims

without prejudice, he refiled those claims in Texas court and the

defendants removed them t o federal court. The defendants appeal

the sanctions imposed by the district court in its order remanding

that action to state court. Anderson urges us to dismiss

defendants’ appeal of the orders for sanctions for lack of

jur isdiction. Finding merit in that argument, we dismiss the

appeal in case number 98–20384.

The district court entered two orders regarding sanctions.

The first, entered on February 20, 1998, orde red “that the

defendants shall pay a reasonable and necessary fee of $2000.00 in

court costs, expenses and attorney fees for the improper removal of

this case[.]” Defendants filed a motion for reconsideration of

that order on March 2, 1998. The district court denied the motion

on April 17, 1998, ordering “that defendants shall pay the counsel

for plaintiff

. . . the sum of $2000.00 as re asonable attorney’s

fees and expenses incurred in filing the motion to reconsider

motion to remand.” Defendants filed their notice of appeal on

April 27, 1998, appealing

from the Order entered in this action on April 17, 1998,

denying reconsideration of the Court’s award of15

“$2,000.00 in court costs, expenses and attorney’s fees

for . . . improper removal, which the Court [found] was

done for purposes of delay,” as set forth in its Order

for Remand of February 20, 1998, from which appeal is

also taken to that extent.

Federal Rule of Appellate Procedure 4(a)(1)(A) provides that,

in a civil ca se, the notice of appeal must be filed with the

district clerk within thirty days after entry of the judgment or

order appealed from. The Notice of Appeal was filed 66 days after

the February 20, 1998 Order of Remand, but within the thirty day

appeal window after the April 17, 1998 order.

Defendants contend that their Motion for Reconsideration

extended the time within which they could appeal the April 17, 1998

Order of Remand. Under Federal Rule of Appellate Procedure

4(a)(4), the timely filing of certain post-decision motions defers

the start of the appeal period until disposition of the motion.

The motions that will extend or toll the thirty-day time limit

under Rule 4 include: 1) a motion under Civil Rule

50(b)(insufficient evidence for judgment); 2) a motion under Civil

Rule 52(b)(to amend judgment or make additional findings of fact);

3) a motion under Civil Rule 60 (for relief from a judgment); 4) a

motion for attorney’s fees by the prevailing party under Civil Rule

54; 5) a motion for new trial under Civil Rule 59(a); and 6) a

motion to amend or alter judgment under Civil Rule 59. Defendants

argue that we should treat their motion for reconsideration as a

Rule 59(e) motion to alter or amend judgment. We cannot.

Defendants’ motion for reconsideration sought only to hav e the

m onetary sanctions vacated and “such other and further relief to3 Approximately six weeks after filing their notice of appeal,

defendants filed a motion for leave to file Amended Notice of

Appeal. While maintaining that the second sanction order

reaffirmed the first $2000 sanction, rather than impo sing an

additional $2000 sanction, the defendants sought, “in an abundance

of caution” to “also appeal any additional sanction that may have

been assessed by the Co urt in its April 17, 1998 Order.” On

September 23, 199 8, the district court denied the motion stating

that an amended notice of appeal was unnecessary because only one

sanction was assessed. However, we are constrained by the plain

language of t he two sanction orders and cannot base our

jurisdiction on language by the district court interpreting those

orders five months after the notice of appeal was filed and after

the district court los t jurisdiction to clarify or modify the

sanctions.

16 which Defendant may show themselves justly entitled.” Because the

question of sanctions raised in defendants’ motion for

reconsideration is collateral to the determination of the merits of

the motion to remand, it does not amount to a Rule 59(e) motion

triggering Rule 4(a)(4). S ee Campbell v. Bowlin

, 724 F.2d 484

, 488

(5th Cir. 1984)(overruled on other grounds by United States v.

Clark

, 51 F.3 d 42 (5th Cir. 1995)). Therefore, the notice of

appeal filed 66 days later did not vest this court with

jurisdiction to review the sanction order imposed by the February

20, 1998 order of remand. Further, the notice of appeal is limited

by its terms to the $2000.00 sanction order contained in the

February 20, 1998 order, and so is not effective in appealing the

$200 0.00 sanction imposed by the April 17, 1998 order. 3 We

conclude that we have no jurisdiction to review the propriety of

either sanction order and consequently must dismiss the appeal.

V. CONCLUSION

The judgment appealed in case number 97-20980 is AFFIRMED in

part, REVERSED in part and REMANDED to the district court for17

further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part and REMANDED.

The appeal in case number 98-20384 is DISMISSED.

DISMISSED.