IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40053

SONYA BRISCOE

Plaintiff-Appellant

v.

JEFFERSON COUNTY;

BO ALFRED;

MARIO WATKINS;

KENNETH MINKINS

Defendants-Appellees

Appeal from the United States District Court

 for the Eastern District of Texas

1:11-CV-202

Before WIENER, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Sonya Briscoe appeals the district court’s dismissal of

her § 1983 complaint alleging deprivations of rights secured by the First and

Fourteenth Amendments. Briscoe also asks us to consider whether the district

court erred when it denied her motion for leave to amend her complaint and,

United States Court of Appeals

Fifth Circuit

F I L E D

December 7, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-40053

subsequently, her motion for reconsideration. As Briscoe has either waived or

failed to preserve each of her claims, we AFFIRM.

I. FACTS AND PROCEEDING

Sonya Briscoe alleged that she was fired from her post as an

administrative secretary in Jefferson County, Texas’s Precinct 4 for expressing

concerns about unaccounted-for disappearances of fuel purchased by the County

– first to her Precinct 4 superiors, then to county auditors, and finally to an

assistant district attorney (ADA). She also alleged that filing an injury report

with human resources and seeking workers compensation for that injury

contributed to her termination. Briscoe sued under 28 U.S.C. § 1983, contending

that (1) the retaliation infringed her right to speak freely as a citizen on matters

of public concern, and (2) she was deprived of liberty and property interests

without due process of law.

Defendants-Appellees are Jefferson County and three Precinct 4

employees (collectively, “Defendants”). In June 2010, they filed a motion under

Rule 12(b)(6) to dismiss Briscoe's complaint for failure to state a claim, or,

alternatively, to “require [Briscoe] to re-plead under Rule 8(a)(2) . . . .” The 1

district court granted Defendants’ motion in part, dismissing under Rule 12(b)(6)

Briscoe’s First Amendment claim of retaliation grounded in her internal reports

of disappearing fuel and her efforts to seek recompense following her injury. The

court also required Briscoe to replead her claims that she was fired (1) in

retaliation for her external communications, in violation of her First Amendment

Briscoe never responded to Defendants’ motion, allegedly because her counsel was

1

hospitalized for two weeks in late July following an accident in which he broke his hip.

2

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rights, and (2) without due process, in deprivation of her Fourteenth

Amendment liberty and property interests.2

After six weeks passed without Briscoe amending her pleadings as

instructed by the district court, it set a deadline for her to do so and warned that

her action would be dismissed with prejudice should she fail to comply. That

deadline came and went, and when Briscoe attempted to submit her amended

complaint two days late, the court denied leave to file it out of time. As it had

warned, the court dismissed Briscoe’s case with prejudice under Rule 41 and,

alternatively, under Rule 12(b)(6), as Briscoe’s proposed amended complaint

failed to remedy the pleading infirmities identified in the court’s earlier order,

making further amendment futile. Briscoe filed a motion to reconsider under

Rule 59, which the court denied. She now appeals those rulings. 3

II. ANALYSIS

On appeal, Briscoe purports to raise three claims of error by the district

court: (1) the dismissal of her claims against Defendants; (2) the denial of her

motion for leave to file an amended complaint after the court-imposed deadline

had passed; and (3) the denial of her Rule 59 motion. Briscoe listed those claims

under the heading “Statement of the Issues” in her opening brief and offered a

condensed factual account of her time as a Precinct 4 employee, but she included

only two pages of argument, and even then addressed only her First Amendment

Although it purported to grant defendants’ “Rule 8(a)(2) motion,” the court is best

2

understood to have granted a Rule 12(e) motion for a more definite statement. Cf. 5C CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1378 (3d ed. 2012)

(“In accordance with the basic philosophy of the federal rules, the general attitude of the

courts has been that a Rule 12(e) motion need not be filed under a technically correct label for

it to be considered as one by the court.”).

Briscoe actually moved for a “new trial,” which the court recharacterized as a motion

3

to alter or amend a judgment pursuant to Rule 59(e).

3

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claim. An issue not presented in the appellant’s opening brief is waived because 4

such failure denies the appellee the opportunity to respond. Briscoe, who is 5

represented by her trial counsel in this appeal, has failed to cite law or present

argument in her opening brief to challenge the district court’s (1) dismissal of

her due process claims, (2) denial of leave to amend, or (3) denial of her Rule 59

motion. Consequently, we shall not consider those claims. 6

This leaves Briscoe’s challenge to the district court’s disposition of her

First Amendment claims as the sole issue before us on appeal. In it, Briscoe

does not assert that communications made “up the chain of command” at

Precinct 4 find protection under the First Amendment; rather, she contends that

in communicating her concerns about the missing fuel to county auditors and the

ADA, she was speaking as a private citizen, not as a public employee. 

It is axiomatic that the First Amendment “protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public

concern.” To establish a First Amendment retaliation claim based on such 7

speech, a plaintiff must demonstrate that(1) he suffered an adverse employment

action; (2) he spoke as a citizen, and not as a public employee, on a matter of

public concern; (3) his interest in the speech outweighed the employer’s interest

 Of these two pages, all but two sentences either directly quote an out-of-circuit case 4

or transcribe an unpublished lecture by a law school professor describing that case.

See United States v. Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008); United States v. 5

Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005); see also Knighten v. Comm’r of Internal Revenue,

702 F.2d 59, 60 n.1 (5th Cir. 1983) (“It is impermissible to mention an issue for the first time

in a reply brief, because the appellee then has no opportunity to respond.”).

See FED. R. APP. P. 28(a)(9)(A) (appellant’s brief must contain “contentions and the 6

reasons for them, with citations to the authorities and parts of the record on which the

appellant relies”); Kohler v. Englade, 470 F.3d 1104, 1114 (5th Cir. 2006) (issue not adequately

briefed when it failed to include any legal authority supporting appellant’s claim); L & A

Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994) (issue not

adequately briefed when no authorities were cited in a one-page argument).

Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). 7

4

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in promoting efficiency; and (4) the speech precipitated the adverse employment

action. When considering whether a public employee spoke as a citizen, courts 8

are to ask, as a threshold matter, whether he spoke pursuant to his official

duties; if he did, then he was not speaking as a citizen for First Amendment

purposes, and his communications were not insulated from employer discipline.9

Briscoe contends in her opening brief that she was fired for reporting the

missing fuel to county auditors and the district attorney’s office –

communications that she asserts were in the vein of citizen speech rather than

employee grievances. 

Regarding her communications with county auditors, Briscoe contends –

for the first time on appeal – that the district court erred when it construed

those communications as made “up the chain of command” and dismissed the

claim accordingly. Defendants had maintained, in their motion to dismiss, that

the speech at issue related to and arose out of Briscoe’s employment, which

characterization Briscoe did not dispute, either in response to Defendants’

motion or in her own Rule 59 motion filed after dismissal. Having failed to raise

this challenge in the district court, Briscoe may not do so on appeal. But, even 10

if she were permitted to do so, the allegations in her complaint belie her

contentions to this court. Briscoe’s district court pleadings state that she worked

“closely with county auditors . . . to generate new and accurate [fuel supply]

paperwork for the maintenance department.” Whether the auditors were in

Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007).

8

Garcetti, 547 U.S. at 421; see also Elizondo v. Parks, 431 F. App’x 299, 303 (5th Cir.

9

2011) (explaining the Fifth Circuit’s test, post-Garcetti).

Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n.19 (5th Cir. 2000) (“Arguments not 10

raised in the district court cannot be asserted for the first time on appeal.”); STEPHEN ALAN

CHILDRESS & MARTHA S. DAVIS, 1 FEDERAL STANDARDS OF REVIEW § 6.03 (4th ed. 2010)

(“[C]ourts have developed the general rule that applicants may not assert facts or theories to

the court of appeals that were not urged before the district court.”); see also id. (“The rule may

have its strictest application when the assertion first raised on appeal is factual . . . .”).

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Briscoe’s chain of command is not the dispositive consideration in identifying

citizen speech protected by the First Amendment. We conclude from facts 11

stated by Briscoe that she sat down with the auditors as a Precinct 4 employee,

bringing to bear her special knowledge of the Precinct’s record keeping policies.12

The district court did not err in concluding that this was unprotected employee

speech.13

As for Briscoe’s letter to the ADA, the district court apparently agreed that

it was not written pursuant to official duties. Briscoe thus survived the

threshold inquiry under Garcetti. But at the point where Briscoe ended her

analysis, the court continued, considering whether the letter addressed a matter

of public concern – a question distinct from whether Briscoe wore the hat of a

public servant or of a private citizen when she wrote it. It is this element of the 14

district court’s analysis that Briscoe should have addressed. As she has failed

See Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007) 11

(recognizing that the Supreme Court’s case law “distinguish[es] between speech that is the

kind of activity engaged in by citizens who do not work for the government, and activities

undertaken in the course of performing one’s job”) (internal citation and quotation marks

omitted). 

Cf. id. at 694 (distinguishing case from Pickering v. Bd. of Educ., 391 U.S. 563 (1968), 12

because “[u]nlike Pickering, whose ‘position as a teacher in the district did not qualify him to

speak with any greater authority than any other taxpayer,’ Williams had special knowledge

that $200 was raised at a basketball tournament [and he] was also experienced with standard

operating procedures for athletic departments.”) (internal citation omitted) (quoting Pickering,

391 U.S. at 572).

We also are unpersuaded by Briscoe’s claim that because she was not required to

13

meet with the county auditors, those communications fell outside of her job duties. See id.

(“Simply because Williams wrote memoranda, which were not demanded of him, does not

mean he was not acting within the course of performing his job.”).

See, e.g., Davis v. McKinney, 518 F.3d 304, 316-317 (5th Cir. 2008) (distinguishing 14

between the citizen-or-employee and public-or-private inquiries, and instructing the district

court to consider on remand whether speech that was not job related nevertheless concerned

only private matters).

6

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to do so in her opening brief on appeal, this claim suffers the same waiver fate

as her others.15

AFFIRMED.

The district court reasoned that, per Connick v. Myers, 461 U.S. 138 (1983), whether

15

Briscoe’s communications implicated matters of public concern must “be determined by the

content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-

48. The court found that for it to be positioned to evaluate the content, form, and context of

Briscoe’s external communications, she had to “be specific as to when her statement or

statements were made, to whom they were made, whether they were oral or written, and the

content of those statements.” 

Whether the court demanded more of Briscoe than was required of her by Rule 8 is a

question that we need not resolve, inasmuch as Briscoe’s opening brief failed to challenge the

district court’s interpretation of her pleading burden. Lest there be any doubt, however, we

note that Rule 8 requires no more than “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A plaintiff may survive a motion to

dismiss by pleading sufficient factual material “to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). This is why courts must take

care not to recast evidentiary standards as pleading requirements. See id. at 586 (Stevens,

J., dissenting) (“[I]t should go without saying . . . that a heightened production burden at the

summary judgment stage does not translate into a heightened pleading burden at the

complaint stage.”); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12 (2002) (holding that a

plaintiff who asserted federal employment discrimination claims was not required to plead

facts establishing a prima facie case to state a claim for relief, as the prima facie case under

McDonnell Douglas “is an evidentiary standard, not a pleading requirement”); cf. Leatherman

v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (finding

it “impossible to square” the Fifth Circuit’s stringent pleading standard in civil rights cases

alleging municipal liability under § 1983 with the notice pleading standard in the Federal

Rules).

7

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