     Case: 16-10458      Document: 00514046467         Page: 1    Date Filed: 06/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 16-10458                            FILED
                                                                          June 23, 2017
                                                                         Lyle W. Cayce
JAMES C. WETHERBE, PH.D.,                                                     Clerk

              Plaintiff - Appellant

v.

TEXAS TECH UNIVERSITY SYSTEM; LANCE NAIL, PH.D., in his
individual capacity only; DR. PAUL GOEBEL, in his official capacity only,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:15-CV-119


                         ON PETITION FOR REHEARING
Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
       IT IS ORDERED that the petition for panel rehearing is GRANTED and
the opinion previously filed in this case, Wetherbe v. Texas Tech Univ. Sys., No.
16-10458, --- F. App’x ----, 2017 WL 2390593, is WITHDRAWN. The following
opinion is substituted therefor:



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10458

      James Wetherbe is a university professor suing his employer, Texas Tech
University, and the current and former deans of the business school where he
teaches. Wetherbe claims that the University and the deans have violated the
First Amendment by retaliating against him for publicly criticizing tenure in
the academy.    The district court granted Defendants’ motion to dismiss,
holding that tenure is not a matter of public concern and that Wetherbe’s
speech on the subject was thus not protected by the First Amendment. We
REVERSE the district court’s dismissal in part because Wetherbe’s public
comments on tenure were those of private citizen on a matter of public concern
and AFFIRM in part because Wetherbe concedes that some of the claims and
issues presented in his complaint are barred by res judicata, collateral
estoppel, and sovereign immunity.
                                      I
      In 2012, James Wetherbe filed a First Amendment suit against Bob
Smith, Texas Tech University’s (TTU) provost, and Lawrence Schovanec,
TTU’s president (collectively, the Previous Defendants), alleging that he
suffered adverse employment actions due to his views on tenure. Wetherbe, a
business professor at TTU’s Rawls College of Business who has been an
“outspoken critic of tenure at universities for over 20 years,” and who had
previously refused to accept tenure at TTU, alleged that the Previous
Defendants violated the First Amendment by refusing to consider him for the
deanship of Rawls or for a Horn Professorship, a prestigious position at TTU,
because he did not have tenure, because he held anti-tenure views, because of
his public speeches and consulting work, and because he was critical of tenure
in his interviews for those positions. The district court denied the Previous
Defendants’ motion to dismiss, but this court reversed and rendered judgment
in their favor, holding that the First Amendment did not protect Wetherbe’s


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decision to reject tenure or his personal views on tenure, that Wetherbe failed
to allege that the defendants were aware of his public speech, and that
comments made in the course of an employment interview were not those of a
private citizen on a matter of public concern. See Wetherbe v. Smith, 593 F.
App’x 323, 327–29 (5th Cir. 2014).
      In 2015, Wetherbe filed this suit against Dr. Lance Nail (“Dean Nail”),
the former Dean of the Rawls College of Business, and against TTU
(collectively with the new Dean of the Rawls College of Business, Paul Goebel,
“Defendants”), claiming that a number of new adverse employment events
were motivated by his first lawsuit and by his anti-tenure publications. The
district court granted Defendants’ motion to dismiss for failure to state a claim.
Specifically, the court found that Wetherbe’s speech did not involve a matter
of public concern because “[t]enure is a benefit that owes its existence to, and
is generally found only in the context of, government employment.” The court
also found that Wetherbe had failed to state a claim for relief based on his
theory that Defendants retaliated against him for filing his first lawsuit, and
granted Defendants’ motion to dismiss in full.
      Wetherbe timely appealed. On appeal, he challenges only the portion of
the opinion dismissing his public-speech-retaliation claim, abandoning his
lawsuit-retaliation claim.
                                       II
      “This court reviews a district court’s grant of a motion to dismiss de
novo.” Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). The plaintiff’s
well-pleaded facts are to be accepted as true and viewed in the light most
favorable to him. Id. A claim is properly dismissed when the facts alleged do
not state a claim that is plausible on its face. Amacker v. Renaissance Asset
Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “A claim has facial plausibility


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when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 450 (5th Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
                                              III
       We first address the district court’s basis for dismissal, then turn to the
Defendants’ proposed alternative bases for affirmance.
                                              A
       Defendants argue that the district court correctly held that tenure is not
a matter of public concern. In Pickering v. Board of Education, 391 U.S. 563,
568 (1968), the Supreme Court held that the First Amendment protects the
rights of public employees “as citizens to comment on matters of public interest
in connection with the operation of” their workplaces. However, in order to
establish a First Amendment claim based on such speech, a public employee
must first “establish that his speech involves a matter of public concern.”
United States Dep’t of Justice v. Fed. Labor Relations Auth., 955 F.2d 998,
1005–06 (5th Cir. 1992) (citing Coughlin v. Lee, 946 F.2d 1152, 1154 (5th Cir.
1991)).    “Whether speech addresses a matter of public concern is to be
‘determined by the content, form, and context of a given statement.’” Id.
(quoting Connick v. Myers, 461 U.S. 138, 147–48 (1983)).                       We therefore
examine Wetherbe’s speech with respect to three overlapping features:
content, context, and form. 1


       1 We note that the district court’s basis for dismissal, that “[t]enure is a benefit that
owes its existence to, and is generally found only in the context of, government employment,”
is clearly in conflict with longstanding precedent holding that the relevant inquiry is not
whether an issue relates to government employment, but whether it involves a matter of
public concern. See, e.g., Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (“Truthful testimony
under oath by a public employee outside the scope of his ordinary job duties is speech as a
citizen for First Amendment purposes. That is so even when the testimony relates to his
public employment or concerns information learned during that employment.”); Perry v.

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       The speech at issue consists of articles published in various media
outlets, some of which were authored by Wetherbe and are critical of tenure,
and some of which were authored by others and discuss Wetherbe’s previous
lawsuit and views on tenure. Many of these articles, which are attached to
Wetherbe’s complaint, discuss what Wetherbe perceives as the systemic
problems with tenure, rather than Wetherbe’s personal experience with
tenure. For example, in an editorial in the Financial Times, Wetherbe opined
that tenure is bad for schools, pointing to the high costs to universities and
arguing that tenure “restricts the ability to rapidly shift research and faculty
investments from static subjects to emerging and more critical domains.” In
an article in the Harvard Business Review, Wetherbe recommended, based on
anecdotal and empirical evidence, that it would be better for schools and for
students if teachers were contract employees.                    The articles discussing
Wetherbe’s own refusal of tenure are similarly geared toward tenure in
general, reasoning from Wetherbe’s personal experience that tenure is not
necessary and has outlived its usefulness. Because these articles focus on the
systemic impact of tenure, not Wetherbe’s own job conditions, the content of
the speech indicates that the speech involves a matter of public concern. See
Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 190 (5th Cir. 2005) (finding that
the content of an employee’s speech weighed “in favor of holding that she spoke
on a matter of public concern” when she spoke about a matter unrelated to her
own employment status or job performance). Wetherbe’s personal stake in and



Sindermann, 408 U.S. 593, 595, 598 (1972) (holding that where a state college professor
claimed First Amendment retaliation based on his disagreement with the policies of the
board of regents, the district court erred in granting summary judgment without analyzing
whether he had been terminated for “public criticism of his superiors on matters of public
concern”). Furthermore, the district court’s premise is fundamentally flawed, as tenure is a
feature of both private and public universities. See, e.g., Klinge v. Ithaca Coll., 634 N.Y.S.2d
1000, 1002 (N.Y. Sup. Ct. 1995) (construing tenure policy of private university).

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experience with tenure do not necessarily render his thoughts less important
to the public. See Moore v. Kilgore, 877 F.2d 364, 370–72 (5th Cir. 1989)
(firefighter’s thoughts about staffing shortage constituted speech on a matter
of public concern); cf. Lane, 134 S. Ct. at 2379 (“[T]he mere fact that a citizen’s
speech concerns information acquired by virtue of his public employment does
not transform that speech into employee—rather than citizen—speech.”). In
fact, Wetherbe’s position as a professor who has rejected tenure could make his
thoughts on tenure of greater interest to the public given his unique experience
and vantage point.     See Salge, 411 F.3d at 188 (finding that high school
secretary’s speech was of “greater importance” to community members because
of her “familiarity with the issues faced by the school district”).
      The context and form of Wetherbe’s speech also indicate that the speech
constituted a matter of public concern. Media coverage noted in Wetherbe’s
complaint, as well as the fact that various media outlets published Wetherbe’s
articles, shows that Wetherbe’s speech was made against the backdrop of an
ongoing public conversation about tenure, which indicates that the public is
actually concerned about tenure. See Kennedy v. Tangipahoa Par. Library Bd.
of Control, 224 F.3d 359, 373 (5th Cir. 2000) (“[S]peech made against the
backdrop of ongoing commentary and debate in the press involves the public
concern.”). While Defendants argue that Wetherbe’s speech was made “in the
course of performing his job,” there is no reason to infer from the complaint
that writing articles on tenure or speaking to the press are part of Wetherbe’s
job duties. See Hurst v. Lee Cty., 764 F.3d 480, 484 (5th Cir. 2014) (noting that
inquiry into public employees’ First Amendment claim concerns whether
statements were made pursuant to their “official duties”). Further, Wetherbe’s
complaint alleges that the media approached him for comment about tenure, a
fact this court has previously found weighs in favor of finding that speech


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constituted a matter of public concern. See Salge, 411 F.3d at 189; Moore, 877
F.2d at 371. In light of these factors, we find that Wetherbe’s complaint has
plausibly alleged that his speech in the form of articles published on tenure
constituted speech on a matter of public concern.
                                             B
       Defendants contend that even if Wetherbe’s speech is protected,
Wetherbe has not plausibly alleged that the adverse employment actions
detailed in his complaint were motivated by his publications. Defendants did
not raise this argument below. 2 “Issues raised for the first time on appeal ‘are
not reviewable by this court unless they involve purely legal questions and
failure to consider them would result in manifest injustice.’” Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (quoting United States v. Garcia-
Pillado, 898 F.2d 36, 39 (5th Cir. 1990)).             We conclude that no manifest
injustice would result from finding that Defendants have failed to preserve this
argument and, accordingly, do not reach its merits.
                                             C
       Defendants urge three alternative bases for affirmance: (1) collateral
estoppel (as similar issues were previously litigated); (2) res judicata (as
Wetherbe has brought claims related to his previous lawsuit that antedate the
filing of that suit); and (3) sovereign immunity (as TTU is an arm of the state
of Texas).    Wetherbe has conceded that each of these arguments is at least
partially meritorious.




       2  At oral argument, Defendants claimed that they raised this argument below by
stating in the conclusion section of their motion to dismiss, “Wetherbe’s allegations
affirmatively establish that the only speech of which Defendants were aware was not
protected and he therefore cannot state a claim for free speech retaliation.” This is
insufficient to preserve the issue for our review, especially because Defendants argued below
that none of Wetherbe’s speech was protected by the First Amendment.

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      A party who has had issues of fact or law adjudicated adversely to it in a
previous action may be collaterally estopped from relitigating the same issues
in a subsequent action. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326–
29 (1979). Defendants argue, and Wetherbe does not contest, that Wetherbe
is collaterally estopped from asserting claims that he was retaliated against
for his personal anti-tenure views and for rejecting tenure, as those claims
were previously adjudicated. See Wetherbe, 593 F. App’x at 328–29. However,
Wetherbe correctly argues that the issue of retaliation on the basis of his
articles, as distinguished from his views on tenure, has not been adjudicated.
See id. at 328 (holding that Wetherbe had not alleged that defendants in the
previous action were aware of any of his public speech). “[C]ollateral estoppel
applies only to issues of fact or law necessarily decided by a prior court.” Hardy
v. Johns-Manville Sales Corp., 681 F.2d 334, 345 (5th Cir. 1982). Accordingly,
we find that collateral estoppel does not bar consideration of alleged retaliation
for authoring anti-tenure articles.
      The related doctrine of res judicata bars claims if: “(1) the parties are
identical or in privity; (2) the judgment in the prior action was rendered by a
court of competent jurisdiction; (3) the prior action was concluded by a final
judgment on the merits; and (4) the same claim or cause of action was involved
in both actions.” Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th
Cir. 2004). Unlike collateral estoppel, res judicata “bars all claims that were
or could have been advanced in support of the cause of action on the occasion
of its former adjudication, not merely those that were adjudicated.” Nilsen v.
Moss Point, 701 F.2d 556, 560 (5th Cir. 1983) (citing Allen v. McCurry, 449 U.S.
90, 94 (1980)).    Wetherbe has failed to raise, and thereby waived, any
arguments in opposition to the application of res judicata to claims predicated
on events that occurred before the commencement of the previous action on


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June 17, 2013. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Thus,
we affirm the district court’s dismissal of claims based on the following events:
(1) denial of access to the Mercer Scholarship Fund, which Wetherbe alleges
occurred in January 2013; (2) removal from the associate dean position, the
Chief Executive Roundtable, and the Leadership Council, which Wetherbe
alleges occurred in May 2013; and (3) removal from teaching the MBA course,
which Wetherbe alleges occurred on June 4, 2013. 3
      Finally, Defendants argue that Wetherbe’s claims against TTU are
barred by Eleventh Amendment sovereign immunity.               While states are
immune from suit in federal court absent waiver or abrogation of this
immunity, under the Ex Parte Young doctrine, a party can seek prospective
injunctive relief against a state officer acting in his official capacity based on
an alleged ongoing violation of the Constitution. K.P. v. LeBlanc, 729 F.3d 427,
439 (5th Cir. 2013). The district court found that claims against TTU and
against Nail, then dean of Rawls, in his official capacity were barred by the
Eleventh Amendment, except to the extent that Wetherbe is seeking
prospective injunctive relief. On appeal, Defendants argue that sovereign
immunity bars all claims against TTU. Wetherbe does not discuss sovereign
immunity in his opening brief, Wetherbe raised no responsive arguments in
his reply brief, and conceded at oral argument that TTU is entitled to sovereign
immunity. Thus, we affirm the district court’s dismissal of all claims against
TTU and of all claims against Goebel, the new dean, in his official capacity that
do not seek prospective injunctive relief.




      3The complaint says that this occurred both on June 4, 2013 and in July 2013.
However, Wetherbe does not dispute Defendants’ reliance on the June 4 date.

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                                     ***
      For these reasons, we AFFIRM the district court’s dismissal of all claims
against TTU; claims against Goebel that do not seek prospective injunctive
relief; claims based on events that occurred before June 17, 2013; and claims
based on Wetherbe’s rejection of tenure and personal views on tenure, as
distinguished from his expressed speech. We REVERSE in all other respects
and REMAND for further proceedings regarding Wetherbe’s remaining claims
against Nail in his individual capacity and claims against Goebel seeking
prospective injunctive relief.




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