IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60182

JOE H. BRYANT, JR.,

Plaintiff - Appellant - CrossAppellee

v.

MILITARY DEPARTMENT OF THE STATE OF MISSISSIPPI,

Defendant - Appellee - CrossAppellant

FRANKLIN E. CHALK; FREDERICK D. FEINSTEIN; ROY A. GRAHAM;

BILLY JOE GRESSETT; DONALD E. JONES; LANGFORD L. KNIGHT; F.

GREGORY MALTA; WILLIAM F. PARTEN; ROBERT E. PIERCE; ROGER

E. SHIRLEY; CHARLES F. STEED; AARON K. WILSON; THOMAS

TEMPLE; JOHN DOES 1-20; LESLIE WILKES,

Defendants-Appellees.

Appeals from the United States District Court 

for the Southern District of Mississippi

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Col. (Ret.) Joe H. Bryant (“Bryant”), a former member of the Mississippi

Air National Guard’s (“MSANG”) 186th Refueling Wing, sued MSANG and

individual MSANG officials (“Individual Appellees”), asserting claims under: (1)

the Military Whistleblower Protection Act, 10 U.S.C. § 1034; (2) the Mississippi

United States Court of Appeals

Fifth Circuit

F I L E D

February 17, 2010

Charles R. Fulbruge III

Clerk

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No. 09-60182

 Bryant’s claims against individual Appellee F. Gregory Malta in his individual

1

capacity are still pending because Malta did not move for summary judgment. Bryant’s state

law claims against individual Appellee Robert E. Pierce also remain pending.

2

Whistleblower Protection Act, MISS. CODE ANN. §§ 25-9-171-77; (3) 42 U.S.C. §

1983; (4) 42 U.S.C. § 1985; and (5) 42 U.S.C. § 1986. Bryant later amended his

complaint to add various state law claims against individual MSANG officials.

Through three separate orders the district court disposed of all claims against

MSANG and the Individual Appellees in their official capacities and all of the

federal law claims against the Individual Appellees in their individual

capacities. Bryant appeals these rulings. MSANG cross-appeals, alleging that 1

the district court erred in denying MSANG’s motion for sanctions. We affirm the

district court’s dismissal of Bryant’s claims and, as to MSANG’s cross-appeal,

affirm the district court’s denial of sanctions.

I

Over an eight-year period during his MSANG service, Bryant allegedly

observed various acts of misconduct by MSANG officials. Bryant reported the

alleged misconduct to superior officers and ultimately filed a complaint with the

Inspector General of the Department of the Air Force. The Inspector General

undertook two separate investigations, in which a number of Bryant’s

allegations of wrongdoing were substantiated. Bryant’s charges and the ensuing

investigation were the subject of regular media coverage in local newspapers and

a talk radio show.

According to Bryant, MSANG and the Individual Appellees responded to

Bryant’s “whistleblowing” with a litany of retaliatory acts. These acts allegedly

included employment-related actions such as attempts to force Bryant’s

resignation, career-damaging reports, and assignment to a position under a

junior officer. Bryant also claims that MSANG officials committed acts of

vandalism and violence, such as breaking into Bryant’s vehicle, stealing his

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laptop, firing gun shots in and around his home, cutting the gasoline line to his

wife’s vehicle, harassing him with anonymous phone calls, and physically

assaulting him. Several of the Individual Appellees also filed civil lawsuits

against Bryant, which he contends were retaliatory and lacked merit. Based on

these allegations Bryant asserted federal and state law claims against MSANG

and the Individual Appellees.

In August 2005, the district court granted a motion to dismiss all claims

against MSANG and the Individual Appellees in their official capacities. The

district court dismissed all claims against MSANG because the Military

Whistleblower Protection Act, 10 U.S.C. § 1034 does not create a cause of action,

and insofar as MSANG is a state agency, all other claims are barred by the

Eleventh Amendment. Additionally, the district court held that all employmentrelated claims against MSANG and the Individual Appellees in their official

capacities are barred under Feres v. United States, 340 U.S. 135 (1950). In July

2007, the district court granted summary judgment in favor of the Individual

Appellees in their individual capacities as to Bryant’s Military Whistleblower

Protection Act, Mississippi Whistleblower Protection Act, §§ 1983, 1985(2) and

(3), and assault and battery claims. The court also disposed of some, but not all,

of Bryant’s claims under §§ 1985(1) and 1986. Finally, in July 2008, the district

court granted summary judgment in favor of the Individual Appellees in their

individual capacities as to Bryant’s remaining §§ 1985(1) and 1986 claims. The

district court entered a Rule 54(b) certification of final judgment as to those

claims denied and parties dismissed by the orders of August 26, 2005, July 17,

2007, and July 17, 2008. Bryant thereafter brought the instant appeal in which

he contends that the district court erroneously applied the Feres doctrine to

dismiss the claims against MSANG and the Individual Appellees in their official

capacities, incorrectly granted summary judgment in the July 2007 order, and

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 MSANG styled its motion to dismiss, in which the Individual Appellees joined, as a 2

“Rule 12(b)(1), 12(b)(6), 12(c), and Eleventh Amendment Motion to Dismiss and for Judgment

on the Pleadings.” The district court did not specify under which procedural mechanism(s) it

was dismissing the claims, and Bryant did not specify which procedural grant(s) of dismissal

he appeals, but regardless, the standard of review is the same.

4

misapplied First Amendment law in determining that Bryant’s § 1985(1) and

§ 1986 claims predicated on allegedly retaliatory litigation were barred.

II

This court reviews Rule 12(b)(1), 12(b)(6), and 12(c) dispositions de novo.

2

See, e.g., Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 293 (5th Cir.

2008); Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). This court also

reviews de novo a grant of Rule 56 summary judgment. The court affirms

summary judgment if the record reveals no genuine issue of material fact and

the movant is entitled to judgment as a matter of law. Croft v. Governor of

Texas, 562 F.3d 735, 742 (5th Cir. 2009). When conducting its review, the court

will evaluate the evidence in the light most favorable to the non-movant. Breaux

v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009).

III

Bryant asserts that the district court erred in dismissing his claims

against MSANG under the Feres doctrine. His brief, however, substantively

discusses the Feres issue only in relation to his vandalism and violence claims

against the Individual Appellees. The district court clearly held that Feres was

not a ground for disposing of the vandalism claims and only applied Feres to

Bryant’s claims of employment-related retaliation against MSANG and the

Individual Appellees. Bryant v. Military Dep’t of State of Miss., 381 F. Supp. 2d

586, 594 (S.D. Miss. 2005) (“Bryant I”). Accordingly, the limited Feres discussion

in Bryant’s brief centers around the wrong claims and the wrong parties.

Bryant’s failure to adequately brief the Feres issue is a waiver of these claims.

United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). Bryant did not

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 The district court’s order, referring to its previous dismissal of Bryant’s Military

3

Whistleblower Protection Act claims, reiterated that the statute does not authorize a private

cause of action. Bryant II, 519 F. Supp. 2d at 626. The district court granted summary

judgment on Bryant’s claim under the Mississippi Whistleblower Protection Act because

Bryant offered no response to the Individual Appellees’ arguments that the Act applies only

to actions by a state “agency,” not coworkers; covers only acts that impact employment; and

does not apply for actions after an employee is no longer employed. Id. at 626-27. Bryant

raises no issue on appeal with respect to these rulings.

 Bryant spends some three pages of his brief discussing his claims of intentional and 4

negligent infliction of mental distress, defamatory/false light liability and intentional

interference with employment. It is unclear whether Bryant believes that these claims were

dismissed. In any event, we need not address these claims because the district court has

retained jurisdiction over them. See Bryant II, 519 F. Supp. 2d at 633-34 (noting that each of

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preserve the issue merely by mentioning it in the “Statement of Issues.” See,

e.g., Justiss Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996)

(declining to address the merits of an issue raised only in the Statement of

Issues and not argued in the body of the brief). Accordingly, we decline to

address the propriety of the district court’s dismissal under Feres.

Moreover, the decision below stands on independent grounds. The district

court ruled that all of Bryant’s claims against MSANG are barred by the

Eleventh Amendment and that the §§ 1983, 1985, and 1986 claims are barred

because MSANG is not a “person” under those statutes. Bryant failed to argue

that either of those determinations was incorrect. His failure to do so is fatal to

his appeal of MSANG’s dismissal from this litigation. See, e.g., Berry v. Jefferson

Parish, 326 F. App’x 748, 750 (5th Cir. 2009) (unpublished) (“An unbriefed

argument is an unpreserved argument.”); see also FED. R. APP. P. 28(a)(9)(A).

IV

Bryant next contends that the district court erroneously granted partial

summary judgment in its July 2007 order. See Bryant v. Miss. Military Dep’t,

519 F. Supp. 2d 622, 626 (S.D. Miss. 2007) (“Bryant II”). Bryant’s appeal 3

addresses only the district court’s grant of summary judgment on his §§ 1983,

1985(1) and (2), and 1986 claims, and the state law assault and battery claims.4

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these claims is based on allegations regarding defendant Pierce’s activities and concluding that

issues of material fact precluded summary judgment as to the tort claims against Pierce).

6

The district court ruled that Bryant could not succeed on any § 1983 First

Amendment claim because he failed to show that the Individual Appellees acted

“under color of state law.” With respect to Bryant’s §§ 1985 and 1986 claims, the

district court ruled that any claims under §§ 1985(2) and (3) fail because Bryant

could not demonstrate that the Individual Appellees were motived by “racial or

some other type of invidious, class-based distinction.” Id. at 628 (citations

omitted). The district court further found that Bryant failed to create a genuine

issue of material fact with respect to his § 1985(1) claim based on allegations of

vandalism and violence. Finally, the district court dismissed Bryant’s assault

and battery claims as barred by the statute of limitations.

A

A claim for violation of First Amendment rights must be brought pursuant

to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege facts

showing that a person, acting under color of state law, deprived the plaintiff of

a right, privilege or immunity secured by the United Sates Constitution or the

laws of the United States. Ellison v. De La Rosa, 685 F.2d 959, 960 (5th Cir.

1982). A person acts “under color of state law” if he engages in the “[m]isuse of

power, possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law . . . .” Townsend v. Moya,

291 F.3d 859, 861 (5th Cir. 2002) (quoting United States v. Causey, 185 F.3d 407,

415 (5th Cir. 1999)). However, a state officer does not act “under color of state

law” if he “pursues personal objectives without using or misusing the power

granted to him by the state to achieve the personal aim.” Id. (quoting Harris v.

Rhodes, 94 F.3d 196, 197 (5th Cir. 1997)).

Bryant first argued that his lawsuit addressed actions taken by the

Individual Appellees as “individuals, who just so happen to also be in the

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 Indeed, as detailed above, Bryant’s brief undercuts his own position by emphasizing 5

that the Individual Appellees acted for their own “personal benefit” and characterizing their

actions as an “extra-military matter.” Appellant’s Br. at 11, 35.

7

military but who act for no military purpose or reasons; rather, they act for their

own hatred against the plaintiff.” Bryant II, 519 F. Supp. 2d at 628. Bryant

further argued that the Individual Appellees’ “actions occur[ed] off base, have no

justifiable military purpose, [and] are perpetrated solely for personal reasons.”

Id. Recognizing that these allegations would doom his § 1983 claims, Bryant

then contended that the Individual Appellees acted under color of state law

because they “clothe[d] themselves as members of the state militia” and

attempted to silence Bryant for their own personal benefit, namely to protect

their miliary careers. Id. But the district court concluded that Bryant’s

allegations, inter alia, assault, vandalism, harassing phone calls, trying to get

Bryant fired from his civilian job, and firing gun shots near Bryant’s home, even

if undertaken to protect the Individual Appellees’ military positions, “were not

made possible by defendants’ military positions and did not occur in the course

of defendants’ performing any of their military duties.” Id.

Bryant has failed to point to specific facts showing there is a genuine issue

whether the Individual Appellees acted under color of state law. He makes only 5

a conclusory assertion that these individuals wanted to protect their military

careers. A motive to protect one’s career is a personal motivation, not specific

to individuals possessing state authority, and without more, namely, an act

under color state law in the performance of actual or pretended duties or done

with a pretense of official authority, is not sufficient. See, e.g., Delcambre v.

Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (finding dismissal of a § 1983 claim

proper where an altercation arose of out of a personal family and political

dispute and the police officer did not use or threaten to use any state authority

during the altercation); see also Revene v. Charles County Comm’rs, 882 F.2d 870

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(4th Cir. 1989) (“[T]he nature of the act is controlling.”); Manning v. Jones, 696

F. Supp. 1231, 1235 (S.D. Ind. 1988) (finding that not all acts of state officials

are under color of state law where motivation is personal and actor did not

invoke or use any official authority). It does not follow from a desire to protect

their military careers that any of these individuals’ actions were achieved

through the use or misuse of power granted by the state. Indeed, the allegations

taken in the light most favorable to Bryant implicate no exercise of state power

whatsoever. No reasonable jury could render a verdict in Bryant’s favor based

on allegations of motive alone, and accordingly, the district court properly

granted summary judgment on Bryant’s § 1983 claims. See Reese v. Anderson,

926 F.2d 494, 499 (5th Cir. 1991).

B

Bryant alleges that the Individual Appellees violated §§ 1985(1) and (2)

and § 1986 by forming an association known as the “Concerned Guardsmen of

Mississippi” to carry out acts of vandalism and violence and by filing retaliatory

civil lawsuits against Bryant. The district court found that a § 1985(2) claim

would not lie because the “equal protection” language of that section requires a

showing that the conspiracy was motivated by class-based discriminatory

animus and whistleblowers are not a protected class. See Bryant II, 519 F. Supp.

2d at 629. With respect to the § 1985(1) claims, Bryant’s pleadings alleged

specific instances of vandalism and violence, but the district court found that

summary judgment nonetheless was warranted because Bryant failed to rebut

the Individual Appellees’ evidence that other members of the community had a

“strong motive to dislike” Bryant and therefore could have perpetrated the acts

of vandalism and violence. Id. at 631.

Section 1985(1) prohibits conspiracies “to prevent, by force, intimidation,

or threat” a federal officer from discharging his duties or to injure him because

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 The first clause of § 1985(2) prohibits conspiracies to deter witnesses from attending 6

court or testifying, punish witnesses who have so attended or testified, or injure jurors. The

district court found this subsection inapplicable to Bryant’s claims, and Bryant does not appeal

that finding.

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of his lawful discharge of his duties. 42 U.S.C. § 1985(1) (2009). Section 1985(2)6

prohibits conspiracies to deny any citizen equal protection of the laws or to

injure a citizen for his efforts to ensure the rights of others to equal protection.

42 U.S.C. § 1985(2) (2009). Section 1986 penalizes those with knowledge of and

the power to prevent § 1985 conspiracies who fail to do so. 42 U.S.C. § 1986

(2009).

On appeal, Bryant contends that the Individual Appellees’ actions were

intended to prevent him from discharging his duties as an MSANG officer and

to impede him from “engaging the due course of justice . . . with the intent to

deny . . . the equal protection of the laws.” Bryant argues, without citation to

any authority, that “[n]o class status is need[ed] for such a claim under 42 U.S.C.

§ 1985(2).” We disagree. The “language requiring intent to deprive of equal

protection, or equal privileges and immunities, means that there must be some

racial, or . . . class-based, invidiously discriminatory animus behind the

conspirator’s action.” See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)

(emphasis added) (referring to § 1985(3)). This Circuit has held that the classbased animus requirement of § 1985(3) applies equally to causes of action under

the second clause of § 1985(2) such as Bryant’s claims here. Daigle v. Gulf State

Utils. Co., 794 F.2d 974, 979 (5th Cir. 1986) (noting the parallel language in

§§ 1985(2) and 1985(3) prohibiting certain conduct with an intent to deny “equal

protection of the laws”). Moreover, we have previously rejected the argument

that “whistleblowers” are a protected class for purposes of § 1985 claims. See

Garrie v. James L. Gray, Inc., 912 F.2d 808, 813 n.13 (5th Cir. 1990). Because

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Bryant’s status as a whistleblower does not entitle him to protection under

§ 1985(2), the district court correctly dismissed the claim.

Bryant also appeals the district court’s grant of summary judgment on his

§ 1985(1) claims predicated on vandalism and violence. A cause of action under

§ 1985(1) requires no allegation of racial or class-based discriminatory animus.

See Kush v. Rutledge, 460 U.S. 719, 726 (1983). Accordingly, Bryant’s “failure

to identify any such animus is no impediment.” Bryant II, 519 F. Supp. 2d at

629. Nonetheless, the district court properly concluded that Bryant’s claim is

barred because he failed to create a genuine issue of material fact whether the

Individual Appellees committed the alleged acts. Bryant presented evidence

that someone committed acts of violence, vandalism and harassment. For

instance, someone sent an anonymous greeting card to his home congratulating

Bryant on having an illegitimate child. Someone also apparently mailed letters

to Bryant’s employer, FedEx, alleging among other things that Bryant smuggled

machine guns on a FedEx plane. While Bryant succeeded in presenting evidence

of violence, threats and intimidation, he presented no direct evidence that any

of the Individual Appellees perpetrated these acts. Instead Bryant pointed to

circumstantial evidence that his whistleblowing activities were motive for

MSANG officials to commit retaliatory acts. But the Individual Appellees

responded with evidence that other members of the community were angered by

Bryant’s activities and thus shared a similar motive. “Once the moving party

has shown ‘that there is an absence of evidence to support the non-moving

party’s cause,’ the non-movant must come forward with ‘specific facts’ showing

a genuine factual issues for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.

2002). To survive summary judgment, Bryant was required to point to specific

facts that would create a triable question whether the Individual Appellees,

rather than someone else, committed the retaliatory acts. Bryant failed to do so.

His only response to Individual Appellees’ evidence of others’ motive was that

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The record inconsistently reflects the date of the alleged assault and battery 7

alternately as September 3, 2003 or September 12, 2003. Regardless of which date is correct,

the statute of limitations would have run by the time Bryant filed suit on this tort claim.

11

he believed that the Individual Appellees’ motive was stronger. Bryant’s belief

is not evidence that creates a triable fact issue; therefore, summary judgment

was proper.

C

Bryant also appeals the district court’s dismissal of his assault and battery

claims against Individual Appellees, Thomas Temple and Leslie Wilkes. The

alleged assault occurred, at the latest, on September 12, 2003. Bryant did not 7

file his suit until March 17, 2005. The district court found these claims time

barred by Mississippi’s one-year statute of limitations. Bryant tries to avoid the

statute of limitations by arguing that the assault and battery were part of a

pattern of ongoing and continuing threats, harassment, and intimidation. The

Individual Appellees respond that assault and battery are not among the types

of torts that can be classified as “continuing” and therefore are not exempted

from the statute of limitations as “continuing torts.”

The statute of limitations for assault actions under Mississippi law is one

year. See MISS. CODE ANN. § 15-1-35 (2009) (“All actions for . . . assault and

battery . . . shall be commenced within one (1) year next after the cause of such

action accrued, and not after.”). Under Mississippi law, the statute of limitations

is tolled by the continuing tort doctrine where there is a repeated injury. See

McCorkle v. McCorkle, 811 So. 2d 258, 264 (¶ 12) (Miss. Ct. App. 2001). “This

principle applies, however, in situations where a defendant commits repeated

acts of wrongful conduct, not where harm reverberates from a single, one-time

act or omission.” Smith v. Sneed, 638 So. 2d 1252, 1255 (Miss. 1994). A

“continuing tort” is “one inflicted over a period of time, it involves a wrongful

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 The district court cites no authority that an assault and battery may not be a 8

continuing tort and we have found no such authority under Mississippi law. However, some

courts hold that assault and battery may be a continuing tort where, for instance, multiple

incidents of assault and battery are perpetrated as in cases of abusive relationships. See, e.g.,

Cusseaux v. Pickett, 652 A.2d 789, 794 (N.J. 1994) (finding that each incident of battery and

assault is not a separate, but a continuing tort where part of a pattern of abuse and violence).

12

conduct that is repeated until desisted, and each day creates a separate cause

of action.” Id. at 1256.

Bryant’s continuing tort theory fails. First, we find unavailing the

argument that the allegations comprising Bryant’s § 1985 claims can be

combined with the single incident of assault and battery to constitute a

“continuing tort.” For one thing, a continuing tort is “a wrongful conduct that

is repeated until desisted,” not an amalgam of various wrongs. Id. (emphasis

added). Second, while the district court opines that “the assault and battery is

not itself a continuing tort,” we need not decide whether under Mississippi law

assault and battery may ever constitute a continuing tort. An allegation of a 8

single incident is plainly insufficient to meet the requirement that the wrongful

conduct be repeated and that the harm not “reverberate from one wrongful act

of omission.” Id. at 1255. The continuing tort doctrine does not apply and

Bryant’s assault and battery claim is barred.

V

Finally, Bryant appeals the district court’s grant of summary judgment in

defendants’ favor on his § 1985(1) claim based on allegations of retaliatory

litigation. The allegedly “retaliatory litigation” includes a slander suit, two

malicious prosecution suits, and an invasion of privacy suit filed by various

Individual Appellees against Bryant. In their first motion for summary

judgment, the Individual Appellees had argued that the allegedly retaliatory

suits could not form the basis of a § 1985(1) claim. Citing Bill Johnson’s

Restaurants v. NLRB, 461 U.S. 731 (1983), they contended that summary

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judgment was proper because “the filing of a meritorious suit is not an actionable

act of retaliation.” They maintained that because their suits had a reasonable

basis in fact and law they could not be held liable for retaliation. In its July

2007 order the district court denied the motion, explaining that it could not

simply assume a reasonable basis for bringing the allegedly retaliatory lawsuits.

Bryant II, 519 F. Supp. 2d at 632. But in its June 2008 order the district court

reconsidered the issue and reached the opposite conclusion after applying BE &

K Constr. Co. v. NLRB, 536 U.S. 516 (2002). The district court found that

Bryant’s § 1985(1) claim for retaliatory litigation was barred by the Individual

Appellees’ First Amendment right of access to the courts. It reasoned that Bill

Johnson’s required the defendants to show that their lawsuits were meritorious,

which they failed to do, while BE & K required that Bryant show that

defendants’ lawsuits were “objectively baseless.” Applying BE & K, the district

court granted summary judgment , concluding that Bryant did not show that the

litigation was “objectively baseless.” Bryant v. Miss. Military Dep’t, 569 F. Supp.

2d 680, 682 (S.D. Miss. 2008) (“Bryant III”).

The First Amendment of the federal Constitution guarantees the right of

access to the courts to petition for redress of grievances. Cal. Motor Transp. Co.

v. Trucking Unlimited, 404 U.S. 508, 510 (1972). We have found no case

addressing the intersection of the right to petition with § 1985(1)’s prohibition

on conspiracies to interfere with a federal officer’s discharge of his duties.

Because the contours of First Amendment petitioning jurisprudence have been

largely fleshed out in the antitrust and labor context, we turn to these cases.

The Noerr-Pennington doctrine holds that the right to petition the government

for redress is generally immune from antitrust liability unless the petitioning

activity is a “sham.” See United Mine Workers v. Pennington, 381 U.S. 657

(1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,

144 (1961). “Baseless litigation is not immunized by the First Amendment right

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to petition.” Bill Johnson’s, 461 U.S. at 743. But determining what litigation is

“sham” or “baseless” requires the drawing of a “difficult line” to separate

objectively reasonable claims from a “pattern of baseless, repetitive claims . . .

which leads the factfinder to conclude that the administrative and judicial

processes have been abused.” Cal. Motor Transp., 404 U.S. at 513. In

Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, the

Supreme Court held that “an objectively reasonable effort to litigate cannot be

sham regardless of subjective intent.” 508 U.S. 49, 57 (1993). The Supreme

Court enunciated a two-part test for sham litigation: (1) “the lawsuit must be

objectively baseless in the sense that no reasonable litigant could realistically

expect success on the merits,” and (2) “only if the challenged litigation is

objectively meritless may a court examine the litigant’s subjective motivation”

to determine “whether the baseless lawsuit conceals ‘an attempt to interfere

directly with the business relationships of a competitor,’ through the ‘use [of] the

governmental process as opposed to the outcome.’” Id. at 60–61 (emphasis in

original) (citations omitted). The plaintiff bears the burden to disprove the

challenged lawsuit’s legal viability before subjective intent can be considered.

Id. This test looks at objective merit at the outset, not whether the claim

ultimately prevailed. Id. at 61 n.5.

The Supreme Court has drawn the contours of the First Amendment

petition right somewhat differently in the labor law context. In Bill Johnson’s,

the case on which the district court’s July 2007 denial of summary judgment was

based, the NLRB enjoined an employer from suing picketing employees for

defamation on the ground that the employer’s suit constituted a retaliatory and

unfair labor practice in violation of the National Labor Relations Act. Bill

Johnson’s, 461 U.S. at 733–35. Bill Johnson’s developed two tests for merit,

depending on the stage of the litigation at which the merit of the case is

assessed. As to whether the NLRB could enjoin an ongoing suit, the Court

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adopted the test for summary judgment, i.e. whether the lawsuit presents “a

genuine issue of material fact.” If so, as in the case of Bill Johnson’s suit against

the picketing employees, then the suit could not be enjoined. Id at 744–45 &

n.11. In dicta, the Court spelled out a second test to be applied once the

underlying litigation is completed. 

If the employer’s case . . . ultimately proves meritorious and he has

judgment against the employees, the employer should prevail . . .

because the filing of a meritorious law suit, even for a retaliatory

motive, is not an unfair labor practice. If judgment goes against the

employer . . . or if his suit is withdrawn or is otherwise shown to be

without merit, the employer has had its day in court, the interest of

the state in providing a forum for its citizens has been vindicated,

and the Board may then proceed to adjudicate the . . . unfair labor

practice case. The employer’s suit having proved unmeritorious, the

Board would be warranted in taking that fact into account in

determining whether the suit had been filed in retaliation.

Id at 747. In a departure from the Professional Real Estate Investor’s

“objectively baseless” test, Bill Johnson’s equated “meritorious” suits with

winning and “unmeritorious” with suits that did not prevail. See id. Thus, two

different standards defining the contours of First Amendment protection for

petitioning activity exist: under Professional Real Estate Investors the litigation

must be found “objectively baseless” before subjective intent is considered, while

under Bill Johnson’s, a reviewing court must simply look to whether the litigant

won or lost the suit to determine whether it was “meritorious.”

The Supreme Court’s grant of certiorari in BE & K poised the Court to

clarify whether the “objectively baseless” or win-lose test should be the standard

for determining what petitioning activity is and is not protected by the First

Amendment. The Court was to determine whether the NLRB under Bill

Johnson’s win-lose test could penalize employers who, for a retaliatory purpose,

filed but lost objectively reasonable suits. See BE & K Constr. Co., 536 U.S. 516.

But the Supreme Court did not ultimately answer that question. Rather, it

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 Although the district court cited to BE & K Construction, which we find inapplicable, 9

it actually applied the “objectively baseless” standard of Professional Real Estate Investors.

16

issued a narrow holding that the NLRB incorrectly interpreted the NLRA in

order to punish suits as “retaliatory” even though they may have been filed for

a legitimate purpose. Id. at 536. The Court issued this narrow holding rather

than address the constitutional question because it determined that the

petitioning activity at issue was the “class of reasonably based but unsuccessful

lawsuits.” See id. at 531. Because the suits were “reasonably based,” the Court

could limit its consideration to the extent to which the NLRB could penalize such

suits under the NLRA which prohibits “interfering, restraining, or coercing”

employees in the exercise of rights guaranteed in [the NLRA]. Id at 536. Here,

there is no pending cause of action under the NLRA. Thus, BE & K does not

answer the question of which test, Professional Real Estate Investors or Bill

Johnson’s, should be applied in the first instance. Nor does BE & K decide

whether a litigant may be liable for bringing an “unsuccessful but reasonably

based suit[] that would not have been filed but for a motive to impose the costs

of the litigation process, regardless of the outcome, in retaliation for . . .

protected activity.” Id. at 537.

Accordingly, we find the narrow holding of BE & K inapposite to the issues

raised in this case. Rather, the standard to be applied to the allegedly

retaliatory litigation is the Professional Real Estate Investors test, requiring a

finding that the petitioning activity is “objectively baseless,” before subjective

intent is considered. This test, rather than Bill Johnson’s, has been extended 9

outside the area of antitrust to other contexts and we find it appropriate here.

Bryant contends that the district court incorrectly placed the burden to

show the suits were objectively baseless on him. The burden to show that a suit

is objectively baseless is on the plaintiff who seeks to show that the suit is not

deserving of First Amendment protection. See Prof’l Real Estate Investors, 508

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U.S. at 60–61. Here, the Individual Appellees moved for summary judgment,

and thus were required to offer evidence that the lawsuits they filed were not

“objectively baseless,” that is, not a lawsuit in which “no reasonable litigant

could realistically expect success on the merits.” Id. at 49. Once they made that

showing, the burden was properly on Bryant as the non-moving party to offer

evidence showing a genuine issue of material fact as to whether the lawsuits

were “objectively baseless.” As discussed below, the district court correctly found

that Bryant did not meet this burden.

One of the Individual Appellee’s lawsuits alleged slander, intentional

infliction of emotional distress, and falsehoods/trade libel based on comments

that Bryant made in a radio talk show and various newspaper and other

publications about the leadership of the MSANG unit. To show that the lawsuit

was not “objectively baseless,” the Individual Appellees pointed to evidence that

Bryant had engaged in a media campaign in which he leaked to the media a copy

of an Inspector General’s report substantiating some of Bryant’s allegations

against various MSANG officials, commented in a series of newspaper stories

about his allegations, and appeared on a radio talk show in which he said that

the MSANG leadership was “corrupt,” “had blood on their hands,” and “ran the

unit like the mafia.” Bryant contended that the lawsuit was “objectively

baseless” because he had not named names on the radio talk show. But this is

insufficient.

Under Mississippi law, slander requires proof of: (1) a false statement that

has the capacity to injure the plaintiff’s reputation; (2) an unprivileged

publication, i.e., communication to a third party; (3) negligence or greater fault

on the part of the publisher; and (4) either actionability irrespective of special

harm or existence of special harm caused by publication. Speed v. Scott, 787 So.

2d 626, 631 (¶21) (Miss. 2001). In responding to the Individual Appellees’ first

summary judgment motion, Bryant claimed that his statements were absolutely

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true and the district court declined to grant summary judgment because

defendants offered no evidence that they were false. It appears that to the

extent the slander lawsuit was based on statements about any of the allegations

that were substantiated in the Inspector General’s report, there could be no

reasonable expectation of proving falsity. But comments to the effect that the

leadership was “corrupt,” “had blood on their hands,” and “ran the unit like the

mafia” are subjective, and the question of falsity is a closer one such that a

reasonable litigant might realistically expect to prove falsity. Moreover, even

though Bryant had not named names, there was ample public information as a

result of the leaked Inspector General’s report and other media stories such that

Bryant’s comments about the “leadership” could be understood to refer to the

individuals who filed suit against him.

Individual Appellees also argued that two separate malicious prosecution

suits filed against Bryant were not “objectively baseless.” Bryant filed criminal

assault claims against Individual Appellees Temple and Wilkes that were

dismissed after Bryant’s presentation of evidence. Temple and Wilkes then each

filed malicious prosecution suits against Bryant. Bryant failed to offer any

evidence that these suits were objectively baseless at their inception, nor can we

say that they were on the record before us. Under Mississippi law, a malicious

prosecution claim requires that the plaintiff prove: (1) the institution of civil or

criminal proceedings by the defendant; (2) termination of the proceedings in the

plaintiff’s favor; (3) malice in instituting the proceedings; (4) want of probable

cause; and (5) damages. See Trilogy Commc’ns, Inc v. Times Fiber Commc’ns,

Inc., 47 F. Supp. 2d 774, 778 (S.D. Miss. 1998); see also Moon v. Condere Corp.,

690 So. 2d 1191, 1194 (Miss. 1997). A reasonable litigant could expect to be able

to show “want of probable cause” based on the court’s dismissal of Bryant’s

assault claims without considering anything other than Bryant’s evidence and

argument. Similarly, a reasonable litigant might expect to succeed in showing

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“malice” by pointing to Bryant’s media campaign against the MSANG leadership

and well-documented comments that he was “after” them.

The same is true of the various invasion of privacy lawsuits that some

Individual Appellees filed against Bryant based on Bryant’s leak of the Inspector

General’s confidential report to local newspapers. Mississippi recognizes a right

of action for invasion of privacy based on public disclosure of private facts. See

Young v. Jackson, 572 So. 2d 378, 381–82 (Miss. 1990). The Inspector General’s

report was confidential and protected by the Privacy Act; Bryant was told not to

disclose its contents. But Bryant gave a copy of the report to two newspapers

that then publicized the information. A reasonable litigant could realistically

expect to prevail on these facts. Morever, Bryant again failed to offer any

evidence that these suits were objectively baseless, other than to argue that they

were not prosecuted or were dismissed. But this argument puts the cart before

the horse. The Supreme Court has made clear that we are to test the objective

merit at the outset, not whether the claim ultimately prevailed. Prof’l Real

Estate Investors, 508 U.S. at 61 n.5. Because we cannot say that any of these

lawsuits were objectively baseless when initiated, we will not consider the

defendants’ subjective intent in filing the lawsuits. See id. at 60–61.

Nonetheless, Bryant vehemently argues that we must consider evidence

that the sole purpose in filing these lawsuits was to silence his complaints of

wrongdoing and misdeeds committed by the MSANG officials. While we have

determined that these lawsuits, all of which were unsuccessful, were not

objectively baseless, the Supreme Court has left open the question whether an

“unsuccessful but reasonably based suit . . . that would not have been filed but

for a motive to impose the costs of the litigation process, regardless of the

outcome” might not be protected by the First Amendment. BE & K, 536 U.S.

537. At this juncture, such petitioning activity is protected under Professional

Real Estate Investors and BE & K. We cannot say whether the Supreme Court

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will, at some future point, determine otherwise. We have previously declined to

create a “retaliatory intent” exception and we reaffirm that view today. See

Bayou Fleet, Inc v. Alexander, 234 F.3d 852, 862 (5th Cir. 2000) (declining to

create an exception to First Amendment protection for petitioning activity that

is not objectively baseless, but undertaken with a “retaliatory intent”).

Finally, Bryant contends that we should find the Individual Appellees’

various lawsuits outside the bounds of First Amendment protection because they

are “illegal” in that they violate the proscription against retaliation found in the

Military Whistleblower Act and 42 U.S.C. §§ 1985(1) and 1986. Bryant also

argues that the “objectively baseless” standard ought to be applied in some

different, and presumably favorable way in this case because multiple lawsuits

were filed against him. But Bryant made neither of these arguments before the

district court and because he failed to do so, we will not consider them now. See

Pluet v. Frasier, 355 F.3d 381, 384–85 (5th Cir. 2004). Because Bryant did not

carry his burden to show that the allegedly retaliatory litigation was objectively

baseless at the outset, without consideration of subjective intent, we affirm the

district court’s grant of summary judgment as to Bryant’s § 1985(1) retaliatory

litigation claims.

VI

MSANG cross-appeals the district court’s denial of its motion for sanctions

under Rule 11, 28 U.S.C. § 1927 and the Mississippi Litigation Accountability

Act, MISS. CODE ANN. § 11-55-1 et seq. The district court denied the motion for

sanctions in a footnote, stating that it was “not persuaded that Bryant’s

complaint against MSANG was frivolous.” Bryant I, 381 F. Supp. 2d at 594 n.12.

This court reviews a district court’s denial of sanctions for abuse of

discretion. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 582 (5th Cir.

2005). We usually require at least a brief statement of reasons in order to

conduct a meaningful review. See, e.g., Copeland v. Wasserstein, Perella & Co.,

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278 F.3d 472, 484 (5th Cir. 2002); Schwarz v. Folloder, 767 F.2d 125, 133–34 (5th

Cir. 1985). Although the district court did not articulate any specific reasons for

its decision, we nonetheless find no abuse of discretion. Sanctions under 28

U.S.C. § 1927 are punitive in nature and require “clear and convincing evidence,

that every facet of the litigation was patently meritless” and “evidence of bad

faith, improper motive, or reckless disregard of the duty owed to the court”

Proctor & Gamble Co. v. Amway Corp., 280 F.3d 519, 525–26 (5th Cir. 2002)

(emphasis in original). Such sanctions may only be awarded if a party

“multiplies the proceedings . . . unreasonably and vexatiously,” a standard that

focuses on the conduct of the litigation and not on the merits. See Religious

Tech. Ctr. v. Liebreich, 98 F. App’x 979, 983 (5th Cir. 2004) (unpublished). In our

review of the record, we see nothing to suggest—let alone clear and convincing

evidence—that sanctions would be appropriate under this standard. And, while

Rule 11 has a lower standard of culpability than § 1927, “an abuse of discretion

only occurs where no reasonable person could take the view adopted by the trial

court.” Berquist v. FyBX Corp., 108 F. App’x 903, 904 (5th Cir. 2004)

(unpublished) (affirming denial of Rule 11 sanctions on the view that there was

no “improper purpose” underlying the complaint). This case, despite Bryant’s

losing, is not totally meritless and we see no evidence of an improper purpose.

Accordingly, we affirm the district court’s denial of sanctions.

VII

For the foregoing reasons, we AFFIRM the district court’s dismissal of all

claims against MSANG and the Individual Appellees in their official capacities

and its two separate grants of summary judgment in the Individual Appellees’

favor. On cross-appeal, we AFFIRM the district court’s sanctions decision.

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