IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10379

MICAH B. PHILLIPS, 

 Plaintiff - Appellant

v.

CITY OF DALLAS, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Texas

Before STEWART, Chief Judge, and SOUTHWICK and COSTA, Circuit 

Judges.

CARL E. STEWART, Chief Judge:

In 2011, Micah Phillips—then a 12-year veteran of the Dallas Fire

Department—announced his candidacy in the Democratic primary for a seat 

on the Dallas County Commissioners Court. At that time, city laws prevented 

city employees from seeking office in any county overlapping the city of Dallas 

(as Dallas County does). The City subsequently terminated Phillips for 

violating those laws. In this suit, dismissed on the pleadings by the district 

court, Phillips challenges those laws both facially and as applied to him. We 

AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2015

Lyle W. Cayce

Clerk

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I. Factual and Procedural Background

Micah Phillips (“Phillips”) began working for the Dallas Fire Department 

in April 1999. He was working as a fire dispatcher when, in December 2011, 

he announced his candidacy for the Dallas County Commissioners Court. The 

city of Dallas (the “City”) notified Phillips on January 23, 2012, that he had 

violated the Dallas City Charter and the Dallas City Code of Ethics by “fail[ing] 

to forfeit [his] position with the City after becoming a candidate for Dallas 

County Commissioner.” Two days later, the City formally discharged him. 

The provision of the Dallas City Charter under which the City 

terminated Phillips states: “If any employee of the city becomes a candidate for 

nomination or election to any elective public office within Dallas County . . . 

the employee shall immediately forfeit his or her place or position with the 

city.” Dallas City Charter, Ch. 3, § 17(c).1 The ethics provision, interpreting 

§ 17(c), limits its application to partisan office-seekers and further implements 

that section. It states that an “employee of the city immediately forfeits 

employment with the city if the employee . . . becomes a candidate for 

nomination or election in a partisan election for public office within a county 

in which the city of Dallas resides . . . .” Dallas Code of Ethics, § 12A-10(b).2

1 The applicable Dallas City Charter provision reads, in full, as follows: “If any employee of the 

city becomes a candidate for nomination or election to any elective public office within Dallas County; 

or elective public office in another county within the state, having contractual relations with the city, 

direct or indirect; or any elective public office that would conflict with his or her position as an 

employee of the city, the employee shall immediately forfeit his or her place or position with the city.”

2 The applicable Code of Ethics rule reads, in full, as follows: “An employee of the city 

immediately forfeits employment with the city if the employee: (A) becomes a candidate for election to 

the Dallas city council; (B) becomes a candidate for nomination or election in a partisan election for 

public office within a county in which the city of Dallas resides, or in a partisan election for a public 

office, the constituency of which includes all or part of a county in which the city of Dallas resides; (C) 

becomes a candidate for nomination or election to an elective public office where the holding of that 

office will conflict with the full and proper discharge of the employee’s duties with the city; or (D) is a 

managerial or supervisory city employee and becomes a candidate for nomination or election to an 

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For simplicity, we refer to these laws collectively as “the Charter” or the “City’s 

Charter.” 

The City denied Phillips’s internal appeal, and he subsequently brought 

this 42 U.S.C. § 1983 suit in federal district court in August 2012, alleging that 

the City violated his First Amendment rights. The district court, relying 

primarily on Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 

550–51 (1973) (upholding federal legislation preventing federal executive 

branch employees from “tak[ing] an active part in political management or 

political campaigns”), granted the City’s Federal Rule of Civil Procedure 12(c) 

motion for judgment on the pleadings and dismissed Phillips’s claims with 

prejudice.3

In this court, Phillips raises three primary issues. He argues that (1) the 

Charter is unconstitutional as applied to him; (2) the Charter is facially 

overbroad; and (3) the City is estopped from defending the Charter.

II. Standard of Review

This court reviews a district court’s decision to grant a Rule 12(c) motion 

for judgment on the pleadings de novo, using the same standards applicable to 

a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Gentilello v. 

Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). His complaint therefore “must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

elective public office of an entity having direct or indirect contractual relations with the city that 

involve the employee’s department.”

3 After the district court’s decision, the Texas Legislature passed a law that even the City 

admits preempts the Charter under which Phillips was terminated. See Senator Mario Gallegos Act, 

Tex. Loc. Gov’t Code Ann. § 150.041 (West) (“A municipality may not prohibit a municipal employee 

from becoming a candidate for public office.”). The law became effective in June 2013, and the parties 

agree that it was not retroactive to Phillips’s January 2012 termination. Because we ultimately 

conclude that the overbreadth challenge must fail on the merits, we do not address the City’s argument 

that this challenge is moot in light of the Gallegos Act.

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that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

III. Discussion

The First Amendment to the Constitution provides: “Congress shall 

make no law . . . abridging the freedom of speech, . . . or the right of the people 

peaceably to assemble.” U.S. Const. amend. I. Speech by citizens and 

government employees on matters of public concern “lies at the heart of the 

First Amendment.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). And while 

“public employers may not condition employment on the relinquishment of 

constitutional rights,” id. (citations omitted), the Supreme Court has 

acknowledged that “[g]overnment employers, like private employers, need a 

significant degree of control over their employees’ words and actions; without 

it, there would be little chance for the efficient provision of public services.” 

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citation omitted). 

The test for balancing an employee’s claimed speech interest against the 

government’s interests derives from Pickering v. Bd. of Educ., 391 U.S. 563, 

568 (1968). From that case, a two-step analysis emerged: the first requires an 

inquiry into whether “the employee spoke as a citizen on a matter of public 

concern.” Garcetti, 547 U.S. at 418. If not, the “employee has no First 

Amendment cause of action.” Id. But if the answer is yes, “[t]he question 

becomes whether the relevant government entity had an adequate justification 

for treating the employee differently from any other member of the general 

public.” Lane, 134 S. Ct. at 2378 (internal quotation marks and citation 

omitted).

Phillips is not the first nonsupervisory government employee to 

challenge a legal scheme that limits public employees’ political activities. 

Indeed, there is a long history of similar challenges both in the Supreme Court 

and in this court, and perhaps an even longer history of laws like the ones at 

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issue here. See Rafael Gely & Timothy D. Chandler, Restricting Public 

Employees’ Political Activities: Good Government or Partisan Politics?, 37 

Hous. L. Rev. 775, 776 (2000) (“The creation of an apolitical public service has 

been a goal of government in the United States almost since the nation’s 

inception.”). 

The starting point for a modern examination of the political rights of 

government employees is United Pub. Workers v. Mitchell, 330 U.S. 75 (1947), 

which upheld federal legislation known as the Hatch Act that forbade certain 

political activities of federal employees,4 notably taking “any active part in 

political management or in political campaigns.” Id. at 78 (internal quotation 

marks and citation omitted).

That holding was reaffirmed in 1973 by a pair of decisions that form the 

contemporary jurisprudential backbone of a long line of cases rejecting First 

Amendment challenges to laws that restrict the political activities of 

government employees. In Letter Carriers, the Court upheld a host of 

restrictions on the political rights of federal civil servants, including—as 

relevant here—a restriction preventing them from being “partisan candidate[s] 

for . . . elective public office.” 413 U.S. at 556 & 576 n.21. A companion case, 

Broadrick v. Oklahoma, 413 U.S. 601, 603, 617–18 (1973), upheld against 

overbreadth and vagueness challenges a state statute that similarly prohibited 

state employees from, inter alia, becoming a “candidate for nomination or 

election to any paid public office.”5 And in Wachsman v. City of Dallas, this 

court held that “virtually all the numerous restrictions on federal employee 

4 The Hatch Act also applied until recently to state and local employees whose positions were 

paid for even in part by federal funds. See S. Rep. No. 112-211, at 3–5 (2012).

5 The state’s attorney general had interpreted the statute to apply only to partisan political 

activity. See Broadrick, 413 U.S. at 617–18. 

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political activity upheld in Letter Carriers . . . apply as much to strictly state 

and local elections and political affairs as to elections for federal office and 

political activities attendant thereto.” 704 F.2d 160, 171 (5th Cir. 1983).

Letter Carriers articulated four governmental interests supporting laws 

limiting public employees’ political rights. First, federal employees “should 

administer the law in accordance with the will of Congress, rather than in 

accordance with their own or the will of a political party.” 413 U.S. at 564–65. 

To “serve the great end of Government—the impartial execution of the laws—

it is essential,” the Court recognized “that federal employees, for example, . . . 

not run for office on partisan political tickets.” Id. at 565. Second, and relatedly, 

employees should also not “appear to the public” to be influenced by politics. 

Id. Third, employees “should not be employed to build a powerful, invincible, 

and perhaps corrupt political machine.” Id. Finally, these laws serve to protect 

federal employees, allowing them to be free “from express or tacit invitation to 

vote in a certain way or perform political chores in order to curry favor with 

their superiors rather than to act out their own beliefs.” Id. at 566.

This court has faithfully adhered to Mitchell and Letter Carriers,

repeatedly upholding similar policies, regulations, and statutes against First 

Amendment challenges. See Commc’ns Workers v. Ector Cnty. Hosp. Dist., 467 

F.3d 427, 431–32, 441–42 (5th Cir. 2006) (en banc) (upholding public hospital 

non-adornment policy as content- and viewpoint-neutral restriction against a 

carpenter who sought to wear a pro-union lapel button); Wachsman, 704 F.2d 

at 169–75 (upholding provisions in Dallas municipal charter prohibiting city

employees from, inter alia, circulating petitions or soliciting contributions for

city council candidates and soliciting funds or serving as campaign managers 

in noncity elections); McCormick v. Edwards, 646 F.2d 173, 175, 179 (5th Cir. 

Unit A May 1981) (concluding that noncivil service state employee with no 

policymaking responsibility could be discharged for active participation—here, 

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among other activities, hosting a fundraising party—in a partisan election 

campaign); Morial v. Judiciary Comm’n, 565 F.2d 295, 301–03 (5th Cir. 1977) 

(en banc) (upholding canon rule requiring sitting state judges to resign before 

seeking political office).6 We turn next to Phillips’s challenges.

A. As-Applied Challenge

Addressing Phillips’s as-applied challenge to the City’s Charter, and 

adhering to the Pickering framework, we consider first whether Phillips’s

candidacy amounted to speech on a matter of public concern7 (that is, whether 

he maintains a First Amendment interest in his candidacy), and second

whether that alleged interest is outweighed by the City’s interest in limiting 

its employees’ political ambitions.

Public Concern

“Speech involves matters of public concern when it can be fairly 

considered as relating to any matter of political, social, or other concern to the 

community, or when it is a subject of legitimate news interest; that is, a subject 

of general interest and of value and concern to the public.” Lane, 134 S. Ct. at

2380 (internal quotation marks and citations omitted). Here, the district court 

held that “becoming a candidate for political office is within the First 

Amendment’s ambit” and therefore constitutes speech on a matter of public 

concern. We agree. 

6 Other circuits have addressed these challenges similarly. See, e.g., Otten v. Schicker, 655 F.2d 

142, 143, 145 (8th Cir. 1981) (holding that a police officer who sought nomination for a senate seat 

overlapping with his police district could lawfully be prevented by police regulation from seeking that 

seat); see also Wilbur v. Mahan, 3 F.3d 214, 219 (7th Cir. 1993) (Easterbrook, J., concurring) (“The 

Supreme Court has held that, without violating the first amendment, a public body may forbid its 

employees to run for elective office.” (citations omitted)); Jenkins v. Town of Bryson City, 946 F.2d 885, 

at *1–2 (4th Cir. 1991) (unpublished); cf. Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265, 1269–70, 

1271–75 (10th Cir. 1998).

7 The parties do not dispute that Phillips spoke in his capacity as a citizen rather than as a 

public employee. See Garcetti, 547 U.S. at 421. 

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This court has been unequivocal in its recognition of a First Amendment 

interest in candidacy. See United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 

1979) (“There is no question that candidacy for office and participating in 

political activities are forms of expression protected by the first amendment.”

(citations omitted)), abrogated on other grounds by Steel Co. v. Citizens for a 

Better Env’t, 523 U.S. 83 (1998); see also Click v. Copeland, 970 F.2d 106, 112 

(5th Cir. 1992) (“It is undisputed that [the plaintiffs’] conduct, running for 

elected office, addressed matters of public concern.”); McCormick, 646 F.2d at

175 (“It cannot be denied that McCormick, like all citizens, has a 

constitutionally protected right to actively support, work for and campaign for 

a partisan candidate for political office or even to run for such office himself.”

(citations omitted)); Morial, 565 F.2d at 301 (“Judge Morial’s interest in being 

free to run for Mayor while retaining his seat on the bench is substantial. . . . 

This burden, moreover, weighs upon the exercise of an important, if not 

constitutionally ‘fundamental,’ right. Candidacy for office is one of the ultimate 

forms of political expression in our society.”).8

The City protests that these statements are dicta and that this court has 

expressly recognized that the issue remains an open question. See James v. 

Texas Collin Cnty., 535 F.3d 365, 377 (5th Cir. 2008) (“[I]t is unclear that the 

First Amendment provides a right to run for office that extends generally to 

government employees . . . .”); Jordan v. Ector Cnty., 516 F.3d 290, 298 n.29

(5th Cir. 2008) (“Defendants protest that Click did not decide whether 

‘candidacy alone’ is protected conduct; as this is not such a case, we do not 

8 Other circuits have reached similar conclusions. See Randall v. Scott, 610 F.3d 701, 714 (11th 

Cir. 2010) (“[The plaintiff’s] decision to run for office enjoys some First Amendment protection.”); 

Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir. 1999) (“[The plaintiff’s] political speech—his 

candidacy for office—undoubtedly relates to matters of public concern.”); Mancuso v. Taft, 476 F.2d 

187, 196 (1st Cir. 1973). But see Carver v. Dennis, 104 F.3d 847, 853 (6th Cir. 1997); Bart v. Telford, 

677 F.2d 622, 624 (7th Cir. 1982).

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pause on whether Click should be so interpreted.”). Nonetheless, we hold today, 

in harmony with those decisions, that candidacy alone constitutes speech on a 

matter of public concern.

Phillips’s announcement that he would seek public office can be “fairly 

considered as relating to [a] matter of political, social, or other concern to the 

community.” Lane, 134 S. Ct. at 2380 (internal quotation marks and citations 

omitted). As we have stated, “[c]andidacy for office is one of the ultimate forms 

of political expression in our society.” Morial, 565 F.2d at 301. 

Phillips’s candidacy also proved to be “a subject of legitimate news 

interest.” Lane, 134 S. Ct. at 2380 (internal quotation marks and citations 

omitted). There was general news coverage of his campaign. See Salge v. Edna 

Indep. Sch. Dist., 411 F.3d 178, 189 (5th Cir. 2005) (“[T]he very fact of 

newspaper coverage [of the issue discussed by the employee] indicates that the 

public was receptive and eager to hear about [the issue].” (internal quotation 

marks and citation omitted)); see also Cioffi v. Averill Park Cent. Sch. Dist. Bd. 

of Ed., 444 F.3d 158, 165 (2d Cir. 2006) (“To gauge the community’s interest in 

[the employee’s] speech we need only look to the abundant press 

coverage . . . .”). While news coverage is neither strictly necessary nor sufficient 

for a determination that speech is of public concern, cf. Morgan v. Covington 

Twp., 563 F. App’x 896, 903 (3d Cir. 2014), it can be a factor. 

Satisfied that Phillips’s candidacy touched on a matter of public concern, 

we next evaluate whether his interests are outweighed by those of the City. 

See 16A McQuillin Mun. Corp. § 45:86 (3d ed. 2014) (“While the right to run 

for public office is protected by the First Amendment, it is not an absolute 

right.”).9

9 That candidacy may not be a “fundamental” right for purposes of the Equal Protection Clause, 

as the City notes, does not answer the question whether candidacy enjoys some protection under the 

First Amendment. See Randall, 610 F.3d at 711 (“While there is no ‘fundamental status to candidacy’ 

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Pickering Balancing

“[R]estrictions on the partisan political activity of public employees and 

officers . . . are constitutionally permissible if justified by a reasonable 

necessity to burden those activities to achieve a compelling public objective.” 

Morial, 565 F.2d at 300 (citations omitted).

Phillips seeks to sidestep the veritable mountain of adverse case law in 

three primary ways. First, he argues, Letter Carriers—which upheld the 

federal Hatch Act, see 413 U.S. at 564—requires narrowly tailoring political 

restrictions to specific, articulable government interests, a dictate not heeded 

by the district court. Second, he points to a Texas district court decision 

employing Letter Carriers to hold an earlier version of the Dallas Charter 

provision at issue here unconstitutional as applied to a Dallas city employee. 

See Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979). Finally, he 

contends that his right to associate with the Democratic Party in the primary 

is threatened by Dallas’s Charter. 

Phillips’s first complaint about the district court’s failure to conduct a 

Pickering analysis is better directed to the weight it accorded those interests. 

The district court explicitly recognized the application of Pickering and 

determined that “[t]he same interests that supported the federal law in Letter 

Carriers can certainly support these laws.” Effectively, the district court 

concluded that Letter Carriers had already done the job of balancing the

interests here and concluded that the government came out ahead. We agree.

Phillips argues that the City (and the district court) could not simply 

adopt the interests articulated in Letter Carriers—as both essentially did—to 

uphold the Charter. Instead, he contends, the City must put forward specific 

requiring the ‘rigorous standard of review’ that is applied in voters’ rights cases, there is at least some 

constitutional right to candidacy.” (citation omitted)). 

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reasons for how his particular candidacy has endangered the City’s interests.10

We do not see why this must be so. In upholding the Hatch Act in Mitchell, for 

example, the Court did not require any particularized demonstration that the 

statute’s interests were advanced in that specific case. The Court explained 

that:

Congress may have concluded that the [political] activity may 

promote or retard [a government employee’s] advancement or 

preferment with his superiors. Congress may have thought that 

Government employees are handy elements for leaders in political 

policy to use in building a political machine. For regulation of 

employees it is not necessary that the act regulated be anything 

more than an act reasonably deemed by Congress to interfere with 

the efficiency of the public service. There are hundreds of 

thousands of United States employees with positions no more 

influential upon policy determination than [the mint roller]. 

Evidently what Congress feared was the cumulative effect on 

employee morale of political activity by all employees who could be 

induced to participate actively. It does not seem to us an 

unconstitutional basis for legislation.

330 U.S. at 101. Mitchell preceded Pickering and could therefore conceivably 

have been limited by Pickering’s balancing test. See Pickering, 391 U.S. at 568. 

But Letter Carriers—which explicitly reaffirmed Mitchell, and similarly did not 

appear to require a particularized showing, see 413 U.S. at 564–66—postdated 

Pickering.

Having justified the City’s use of the Letter Carriers interests to defend 

its Charter, we emphasize its holding. There, the Court saw no constitutional 

10 On this issue, Phillips focuses our attention on the seeming unfairness of applying the City’s 

Charter to a nonsupervisory employee. But this was precisely the effect of the laws in Letter Carriers

and Mitchell. In Letter Carriers, two nonsupervisory mailmen were among the plaintiffs precluded 

from seeking any partisan office. See Nat’l Ass’n of Letter Carriers v. Civil Serv. Comm’n, 346 F. Supp. 

578, 586 n.1 (D.D.C. 1972) (MacKinnon, J., dissenting), rev’d, 413 U.S. 548 (1973). In Mitchell, the only 

plaintiff with standing was a roller at the United States Mint, a position the Court recognized called 

for “the qualities of a skilled mechanic” and did not “involve contact with the public.” 330 U.S. at 101. 

This argument, therefore, must be rejected.

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infirmity in a law that precluded federal government employees from a very 

broad range of political activity, including (among other political pursuits): 

raising money for, publicly endorsing, or campaigning for political candidates; 

serving as an officer of a political club; participating as a delegate in a political 

convention or running for office in a political party; and writing letters on 

political subjects to newspapers. See 413 U.S. at 551 n.3, 576 n.21. We note 

that Phillips is not prohibited from participating in any of these activities. But 

most significantly here, the Court held that a line-level postal worker could be 

precluded from “[b]ecoming a partisan candidate for, or campaigning for, an 

elective public office.” Id. at 576 n.21. It cannot be said that the Court left open 

the possibility of a successful as-applied challenge to a rule like the City’s: 

Phillips’s sphere of permissible political activity dwarfs the corresponding 

range afforded the mailmen in Letter Carriers. 

We would reach the same conclusion even if we were to confine our 

analysis to the candidacy restrictions at issue in Letter Carriers, which formed 

only one limitation in a non-exhaustive list of 18 activities explicitly prohibited 

by the Hatch Act. See 413 U.S. at 576 n.21. While the Hatch Act prohibited 

seeking partisan political offices at the state, federal, and municipal level, id. 

at 572 n.18, the City’s Charter is narrowly drawn to prevent City employees 

from running for an office in the Dallas metropolitan area or from seeking an 

office that might create a conflict for the employee. See Dallas Code of Ethics, 

§ 12A-10(b).

Phillips next directs us to Hickman v. City of Dallas, in which a district 

court held a prior version11 of the City’s Charter unconstitutional as applied to 

a nonsupervisory police officer who sought nonpartisan office (a city council 

11 The City’s Charter was redrafted after Hickman to focus exclusively on partisan political 

activity. 

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position) in another city located in Dallas County. 475 F. Supp. at 139–41. 

First, Hickman dealt with a nonpartisan office (though the court commented 

that its holding did not hinge on that fact), id. at 141, whereas the prohibition 

here is directed only at partisan office. More importantly, though, Hickman is 

distinguishable because Dallas assuredly has a far greater and more direct 

reason to regulate its employees’ political activities in a county with 

jurisdictional overlap (here, part of the City lies within Dallas County) than it 

does in a city with none. In Wachsman, we recognized that it is 

unrealistic to assume that politics within the geographical 

boundaries of a city are divided into completely unrelated 

watertight compartments of city and noncity politics. . . . Moreover, 

significant operating relationships frequently exist within the 

geographical area of a city, between the city government, whether 

partisan or not, and the county, state, and federal governments. 

City politics . . . cannot be viewed as wholly divorced from the 

politics, within the area of the city, of the local, state, and federal 

governments.

704 F.2d at 171. Accordingly, we do not find Hickman relevant here. 

Finally, Phillips seeks to recast his right to run for office as one of a right 

to associate with the Democratic Party in the primary.12 While the right to 

associate with a political party is protected, see Kusper v. Pontikes, 414 U.S. 

51, 56–57 (1973), the district court correctly recognized that “[t]he logical 

consequences of Letter Carriers extend to individuals’ and groups’ associational 

12 Relatedly, Phillips argues that the City’s Charter violates the rights of voters who seek to

associate with him. Phillips lacks standing to pursue claims on behalf of these voters, who are not 

plaintiffs in this litigation. See Tarpley v. Salerno, 803 F.2d 57, 60 (2d Cir. 1986) (“Although the voters 

do have some community of interest with the candidates, the relationship is not close enough to be 

viewed as an authorization by the former to the latter to represent the voters in . . . legal 

proceedings . . . .”). By contrast, the judge-plaintiff in Morial who unsuccessfully challenged 

Louisiana’s resign-to-run laws in this court was “joined by thirteen citizen-voters who indicated their 

support for his candidacy.” 565 F.2d at 297; see also Clements v. Fashing, 457 U.S. 957, 961 (1982) 

(“The remaining appellees are 20 voters who allege that they would vote for the officeholder-appellees 

were they to become candidates.”).

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rights.” Simply recharacterizing the right to candidacy claim as one of a right 

to associate does not alter the ground beneath this case. “Neither the right to 

associate nor the right to participate in political activities is absolute in any 

event.” Letter Carriers, 413 U.S. at 567. 

Phillips relies on Jordan v. Ector Cty., 516 F.3d 290 (5th Cir. 2008), 

which he claims recognizes some political associational rights of government 

employees. The Jordan court addressed a plaintiff who claimed that she had 

been fired for challenging her superior in an election, not because of any rule 

limiting government employees’ political activity. See 516 F.3d at 293, 298–99. 

The court explicitly distanced itself from cases that “grapple with policies that 

regulate public employees’ ability to run.” Id. at 298. Jordan is therefore 

inapposite in this context.

Consequently, Phillips’s as-applied challenge falls short because “the 

government had an ‘adequate justification for treating [him] differently from 

any other member of the public’ based on the government’s needs as an 

employer.” See Lane, 134 S. Ct. at 2380 (quoting Garcetti, 547 U.S. at 418). 

B. Overbreadth Challenge

Phillips next challenges the Charter as overbroad. But just as his asapplied attack fails because of Letter Carriers, this facial attack is controlled 

by its companion case, Broadrick, which upheld a far more expansive state 

statute against an overbreadth challenge. See 413 U.S. at 618.

In discussing the Oklahoma statute at issue in Broadrick, the Court 

recognized that “[w]ithout question, a broad range of political activities and 

conduct is proscribed.” Id. at 604–05. Here, we need not focus on the entire list

of prohibited partisan political activities. For example, one challenged 

provision held constitutional by the Court read as follows:

No employee in the classified service shall be a member of any 

national, state or local committee of a political party, or an officer 

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or member of a committee of a partisan political club, or a 

candidate for nomination or election to any paid public office, or 

shall take part in the management or affairs of any political party 

or in any political campaign, except to exercise his right as a citizen 

privately to express his opinion and to cast his vote.

Id. at 603 n.1. Without any indication that Broadrick has been overruled, there 

is simply no way to call the City’s far more temperate Charter overbroad 

without running afoul of binding precedent.

C. Estoppel

In Phillips’s final challenge to the Charter, he invokes both collateral 

estoppel and judicial estoppel against the City. The principle of offensive 

nonmutual collateral estoppel—the specific collateral estoppel doctrine 

Phillips appears to be employing—“is that if a litigant has fully and fairly 

litigated an issue and lost, then third parties unrelated to the original action 

can bar the litigant from re-litigating that same issue in a subsequent suit.”

Gibson v. U.S. Postal Serv., 380 F.3d 886, 890 (5th Cir. 2004). As relevant here, 

it would require that “the issue under consideration [be] identical to that 

litigated in the prior action.” Winters v. Diamond Shamrock Chem. Co., 149 

F.3d 387, 391 (5th Cir. 1998) (internal quotation marks and citation omitted). 

Offensive nonmutual collateral estoppel is inapplicable here because the 

underlying Charter provision and the Code of Ethics provision interpreting it 

have changed since Hickman to apply only to partisan political activity. In 

addition, as explained earlier, the Hickman plaintiff sought office in another 

city in Dallas County, see 475 F. Supp. at 139, whereas Phillips sought a Dallas 

County office. The issue litigated in Hickman is therefore not the issue the 

parties are litigating here. “If the legal matters determined in the earlier case 

differ from those raised in the second case, collateral estoppel has no bearing 

on the situation.” Comm’r v. Sunnen, 333 U.S. 591, 600 (1948). 

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Judicial estoppel, by contrast, precludes a “party from assuming 

inconsistent positions in litigation.” In re Superior Crewboats Inc., 374 F.3d 

330, 334 (5th Cir. 2004) (citation omitted). Judicial estoppel requires that: “(1) 

the party against whom judicial estoppel is sought has asserted a legal position 

which is plainly inconsistent with a prior position; (2) a court accepted the prior 

position; and (3) the party did not act inadvertently.” Reed v. City of Arlington, 

650 F.3d 571, 574 (5th Cir. 2011). In this case, the question is whether the 

City’s position in Davis v. City of Dallas, 992 S.W.2d 621 (Tex. App.—Dallas 

1999, no pet.), is inconsistent with the position it asserts here. Contrary to 

Phillips’s argument otherwise, there is almost no indication at all about the 

precise position the City took in Davis. And in any case, Davis involved the 

application of a predecessor provision of a different part of the City’s Code of 

Ethics, specifically applicable to City employees who seek a position on the 

Dallas city council. See 992 S.W.2d at 624–25; Dallas Code of Ethics, § 12A10(b)(2)(A). The City is not estopped here. 

IV. Conclusion

Letter Carriers and Broadrick remain good law, and Pickering balancing 

in this circuit has time and time again favored governments against First 

Amendment challenges to laws more far-reaching than the City’s here. See 

Commc’ns Workers, 467 F.3d at 431–32, 441–42; Wachsman, 704 F.2d at 169–

75; Morial, 565 F.2d at 301–03. Put simply, the “governmental interest in fair

and effective operation of the . . . government justifies regulation of partisan 

political activities of government employees.” John E. Nowak & Ronald D. 

Rotunda, Constitutional Law § 16.52(a) (8th ed. 2010).13

13 It is true that rules restricting political rights of government employees have been criticized 

as imprudent, see Jason C. Miller, The Unwise and Unconstitutional Hatch Act, 34 S. Ill. U. L.J. 313, 

356–57 (2010), and that the federal government along with some states (including Texas) have limited 

regulation in this area. See Hatch Act Modernization Act of 2012, Pub. L. No. 112-230 (limiting Hatch 

Act’s coverage of state and local employees); Senator Mario Gallegos Act, Tex. Loc. Gov’t Code Ann. § 

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Phillips has sought remand to develop an allegation of viewpoint 

discrimination. We think remand would be inappropriate because Phillips has 

never made such an allegation.

The judgment of the district court is accordingly AFFIRMED.

150.041 (West) (“A municipality may not prohibit a municipal employee from becoming a candidate 

for public office.”). But this alone does not signify that these laws present problems of a constitutional 

dimension.

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