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

                                      No. 16-41565
                                                                                Fifth Circuit

                                                                              FILED
                                                                        January 3, 2018

LEILA HERNANDEZ,                                                         Lyle W. Cayce
                                                                              Clerk
              Plaintiff – Appellant

v.

GUY BAILEY; HAVIDAN RODRIGUEZ; DAHLIA GUERRA; THE
UNIVERSITY OF TEXAS – PAN AMERICAN; THE UNIVERSITY OF
TEXAS SYSTEM; THE UNIVERSITY OF TEXAS RIO GRANDE VALLEY,

              Defendants – Appellees.



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 7:15-CV-410


Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       In the latest wrongful termination dispute arising out of the legislative
abolition of the University of Texas–Pan American (“UTPA”) and the
University of Texas at Brownsville (“UTB”), Leila Hernandez (“Hernandez”)
appeals the district court’s order denying her motion for leave to file an
amended complaint and granting Defendant-Appellees’ Federal Rule of Civil



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Procedure 12(c) motion for judgment on the pleadings. Because Hernandez, in
both her original and proposed amended complaints, failed to state a plausible
claim for relief, we AFFIRM.
      I.      FACTUAL AND PROCEDURAL BACKGROUND
      As this Court has already recited many of the relevant facts in an earlier
opinion, 1 the following summary of the case is slightly abridged. In 2003,
UTPA hired Hernandez as a graphic design Associate Professor. Hernandez
served in that role until September of 2008 when she was awarded tenure and
promoted to Assistant Professor. As a tenured faculty member, Hernandez
was entitled to continuing employment at UTPA “until retirement or
resignation unless terminated because of abandonment of academic programs
or positions, financial exigency, or good cause.” 2
      In early 2013, the Texas legislature passed Senate Bill 24, which
abolished UTPA and UTB and created a consolidated university in southern
Texas later named the University of Texas Rio Grande Valley (“UTRGV”). 3
Senate Bill 24 guaranteed that all students “admitted to or enrolled at” UTPA
or UTB on the date of abolition were “entitled to admission” at UTRGV, but it
merely instructed the University of Texas System Board of Regents (“Board”)
to “facilitate the employment at [UTRGV] of as many faculty and staff of the
abolished universities as is prudent and practical.” 4 Other than this mandate,
the bill left the hiring procedures at UTRGV up to the Board’s expertise and
discretion.
      In fulfilling its responsibilities, the Board developed a bifurcated hiring
process. Details of the process were disseminated by a document entitled,



      1 See Edionwe v. Bailey, 860 F.3d 287, 290–91 (5th Cir. 2017).
      2 Id. at 290.
      3 Act of May 22, 2013, 83d Leg., R.S., ch. 726, 2013 Tex. Gen. Laws 1846.
      4 Id. (emphasis added).

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“Hiring of Tenured and Tenure-Track Faculty Members to The University of
Texas Rio Grande Valley Frequently Asked Questions” (“FAQ”). Phase I was
limited to tenured and tenured-track faculty members from UTPA and UTB
who met criteria delineated by the Board’s official hiring policy. According to
the policy, if, in addition to satisfying seven other requirements, a tenured
UTB or UTPA faculty member had not received “a disciplinary action” from
UTB or UTPA in the last seven years, UTRGV’s President was required to
“recommend that the Board of Regents grant tenure [at UTRGV] to” that
individual in Phase I. If a UTPA and UTB faculty member was not hired in
Phase I, she could then apply in Phase II alongside members of the general
public.
       Hernandez applied for Phase I hiring on September 4, 2014. Guy Bailey,
UTRGV’s President, rejected her application via e-mail on October 6, 2014. In
the e-mail, Bailey explained that Hernandez was ineligible for Phase I hiring
because she had been disciplined by UTPA in 2011. Hernandez, Bailey, and
multiple UTPA administrators subsequently exchanged several e-mails
regarding the 2011 disciplinary action, but UTRGV ultimately upheld its
rejection of Hernandez’s Phase I application. Hernandez then applied in Phase
II. On May 18, 2015, UTRGV rejected her Phase II application, specifically
noting that her position was “closed” and would “remain[] unfilled.” 5
Hernandez’s employment and tenure at UTPA officially terminated on August
31, 2015. The next day, UTRGV commenced operations.
       On August 28, 2015, Hernandez sued Guy Bailey, Havidan Rodriguez,
Dahlia Guerra, UTPA, the UT System, and UTRGV (collectively, “Appellees”)
in Texas state court pursuant to 42 U.S.C. §§ 1983 and 1988, alleging violations


       5 The hiring policy required that a Phase I applicant’s desired academic program “exist
at the inception of ‘UTRGV’” and that UTRGV’s budget allow for the hiring of the particular
position.
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                                     No. 16-41565
of procedural and substantive due process. She also sought a declaratory
judgment pursuant to Chapter 37 of the Texas Civil Practice and Remedies
Code. Appellees timely removed the suit to federal court under 28 U.S.C. §
1331 and filed a Rule 12(c) motion for judgment on the pleadings. Hernandez
filed a response, or in the alternative, a motion for leave to amend pleadings.
Hernandez then filed an amended motion for leave to amend her complaint
and attached a copy of her proposed amendments.                          In the proposed
amendments, Hernandez included a variety of additional factual allegations
as well as two new constitutional claims: an equal protection claim and a void-
for-vagueness claim. The district court denied Hernandez’s amended motion
for leave, finding that her amendments would have been futile. The district
court simultaneously granted Appellees’ Rule 12(c) motion, holding that
Hernandez failed to state a plausible claim for relief on procedural and
substantive due process grounds and that Hernandez was not entitled to
declaratory judgment because the state entity defendants enjoyed sovereign
immunity. This appeal ensued.
      II.    DISCUSSION
             A. Motion for Judgment on the Pleadings
                      1.    Standard of Review
      This Court reviews de novo the district court’s grant of a Rule 12(c)
motion for judgment on the pleadings. 6 The standard we apply is the same
standard we apply in reviewing dismissals under Rule 12(b)(6) for failure to
state a claim. 7    “[The] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” 8




      6 See Edionwe, 860 F.3d at 291.
      7 See id.
      8 Id. at 291 (internal quotation marks and citation omitted).

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                      2.    Analysis
      Our recent decision in Edionwe forecloses many of the issues presented
by Hernandez’s appeal of the district court’s Rule 12(c) dismissal. In that case,
the plaintiff (Edionwe) was a tenured faculty member at UTPA. 9 Although he
missed the deadline for applying for a position at UTRGV during Phase I
hiring, he submitted a timely application during Phase II. 10                 However,
Edionwe was subsequently informed that the position he applied for would not
be filled, and his employment and tenure at UTPA terminated on August 31,
2015. 11
      Edionwe then filed suit under §§ 1983 and 1988 against the same
defendants Hernandez sued herein. 12 He asserted that the defendants violated
his constitutional rights to procedural and substantive due process by
terminating his property interest in continuing employment. 13                       We
determined, however, that Edionwe “had no constitutionally protected interest
in employment or tenure at UTRGV or the UT System at large.” 14 We further
determined that Edionwe was afforded procedural and substantive due process
with respect to the termination of his employment at UTPA. 15
      Hernandez similarly asserts that she had a constitutionally protected
property interest in continuing employment at UTRGV. Like Edionwe, she
contends that the following sources gave rise to a reasonable expectation of
continued employment at UTRGV: (1) her length of service and tenure at




      9 See Edionwe, 860 F.3d at 290.
      10 See id.
      11 See id. at 290-91.
      12 See id. at 291. There is one additional defendant present in this matter, Dahlia

Guerra.
      13 See id. at 292.
      14 Id. at 293 (footnote omitted).
      15 See id. at 293-94.

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UTPA, (2) the legislation 16 requiring employment of as many faculty from
UTPA and UTB “as is prudent and practical,” (3) the public statement by
UTRGV’s President that UTPA and UTB were merging, (4) the hiring policy
adopted by the UT System for UTRGV tenured faculty members of UTPA, and
(5) the UTRGV FAQ Statement on Hiring tenured UTPA faculty members. We
addressed these same factors in Edionwe and determined that none of them
created a constitutionally protected interest in employment or tenure at
UTRGV or the UT System at large. 17 Consequently, Hernandez’s arguments
on these issues are foreclosed.         Hernandez’s arguments that she was not
afforded procedural or substantive due process with respect to the termination
of her employment at UTPA are also foreclosed by Edionwe. 18
       The only argument we did not specifically address which Hernandez
raises is whether the fact that UTRGV tenured and tenure-track faculty were
given credit for years of service at UTPA created a constitutionally protected
property interest. 19 Such action, however, still does not establish that “UTRGV
itself, through the board of regents, adopted a policy that guaranteed
employment for all faculty from UTPA.” 20 Therefore, Hernandez’s argument
on this issue is unavailing.
       Because Hernandez had no constitutionally protected interest in
employment at UTRGV or the UT system at large, and she was afforded
procedural and substantive due process with respect to the termination of her




       162013 Tex. Sess. Law Serv. 1853 (West).
       17See Edionwe, 860 F.3d at 292-93, 295-96.
      18 See id. at 293-94.
      19 See id. at 293 n.1 (declining to address certain allegations and external documents

because they were not included in Edionwe’s complaint or incorporated by reference).
      20 See id. at 293.

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employment at UTPA, the district court did not err in granting the Appellee’s
Rule 12(c) motion for judgment on the pleadings. 21
              B. Motion for Leave to Amend
                       1.    Standard of Review
       Motions to amend made before trial are governed by Federal Rule of
Federal Procedure 15(a)(2), which instructs district courts to grant leave to
amend “freely . . . when justice so requires.” 22 “[I]n order to take advantage of
the liberal amendment rules . . . , the party requesting amendment, even
absent a formal motion, need only ‘set forth with particularity the grounds for
the amendment and the relief sought.’” 23 Because Rule 15(a) “evinces a bias
in favor of granting leave to amend,” the district court must have a “substantial
reason” for denying the motion. 24 District courts are empowered to deny a
motion to amend for, inter alia, “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of [the] amendment.” 25 We have
interpreted futility “to mean that the amended complaint would fail to state a
claim upon which relief could be granted.” 26




       21   Because we conclude that Hernandez failed to allege a constitutional violation, we
need not address whether any defendant was entitled to qualified immunity. Furthermore,
we exercise our discretion and decline to consider Hernandez’s claim for declaratory
judgment. See Edionwe, 860 F.3d at 294 n.2.
        22 Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting FED. R.

CIV. P. 15(a)(2)).
        23 Id. (quoting United States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 330–31 (5th

Cir. 2003)).
        24 Hermann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002)

(internal citations and quotation marks omitted).
        25 Foman v. Davis, 371 U.S. 178, 182 (1962).
        26 Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000).

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                                      No. 16-41565
       We generally review the denial of a motion to amend for abuse of
discretion; 27 however, where the district court bases its denial of leave to
amend solely on futility grounds, a de novo review applies. 28 This review is
“identical, in practice, to the standard used for reviewing a dismissal under
Rule 12(b)(6).” 29 Under the 12(b)(6) standard, well-pleaded facts are viewed
in the light most favorable to the plaintiff. 30 However, the plaintiff must still
offer specific facts, not mere conclusory statements. 31 The claims advanced
must be plausible. 32
       Even though the district court failed to address, specifically, how
Hernandez’s additional proposed claims—an equal-protection claim and a
void-for-vagueness claim—would have been futile if amendment were
permitted, we may affirm the district court’s dismissal “on any grounds
supported by the record.” 33 First, we turn to Hernandez’s proposed equal-
protection claim.
                       2.    Equal-Protection Claim
       Hernandez argues that the district court erred by denying her the
opportunity to amend her complaint to include an equal-protection claim. An
equal-protection claim is not futile, she contends, because she alleged in her
proposed amended complaint that UTRGV’s failure to hire her resulted from a
“class-based decision treating distinct groups of individuals categorically
different.” She submits that distinguishing between these classes of former



       27 Thomas, 832 F.3d at 590 (citing Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344,
347 (5th Cir. 2008)).
       28 See id.
       29 See City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010).
       30 See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
       31 Stripling, 234 F.3d at 873.
       32 In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010).
       33 See City of Clinton, 632 F.3d at 153 (quoting Hosein v. Gonzales, 452 F.3d 401, 403

(5th Cir. 2006)).
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                                       No. 16-41565
UTPA professors on the basis that some, but not others, were disciplined
within the last seven years, is not rationally related to the State’s interest in
promoting quality public education.
       Appellees counter that Hernandez’s proposed amended complaint failed
to adequately plead an equal-protection claim because: (1) discretionary hiring
decisions in the public-employment context do not yield a “clear standard” by
which to evaluate an equal-protection claim; and (2) Hernandez has not carried
her burden of negating all rational bases for the decision not to hire those
professors who were disciplined within seven years of the decision.
       We need not address the arguments concerning Hernandez’s ability to
bring this claim in the public-employment context because UTRGV’s decision
to hire only those professors who have not been disciplined within the last
seven years is patently rationally related to a legitimate public interest.
       The fundamental directive of the Equal Protection Clause is that
similarly-situated persons should be treated alike by government actors. 34
However, “[u]nless a classification trammels fundamental personal rights or is
drawn upon inherently suspect distinctions,” the classification need only bear
a rational relationship to a legitimate state interest to survive judicial
scrutiny. 35    Courts are bound to uphold differential treatment if any
“reasonably conceivable state of facts” gives rise to a rational basis for the
classification. 36




       34  See Mahone v. Addicks Util. Dist. of Harris Cty., 836 F.32d 921, 932 (5th Cir. 1988).
       35  City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); see also Apache Bend Apts.,
Ltd. v. United States, 964 F.2d 1556, 1560–61 (5th Cir. 1992) (“[C]lassifications of any sort
that are not rationally related to a legitimate governmental interest are unconstitutional.
Equal protection is not concerned exclusively with archaic stigmas.”).
        36 Hines v. Alldredge, 783 F.3d 197, 202–03 (5th Cir. 2015) (quoting Madriz-Alvarado

v. Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004)).
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       Because the classification at issue here does not infringe upon
fundamental constitutional rights, we apply rational basis review. 37 Here, the
requirement that professors not have any disciplinary record within seven
years of application is, at a minimum, rational. It is reasonable to conclude
that professors’ overall fit with UTRGV would be better, and thus the quality
of the teaching higher, if professors eligible for employment at UTRGV were
limited to those without a recent history of disciplinary actions. 38 Because an
amendment to include such a claim would have been futile, we affirm the
district court’s denial of Hernandez’s motion to amend her complaint on equal
protection grounds. 39
                       3.   Void-for-Vagueness Claim
       Hernandez also argues that the district court erred in failing to grant
her leave to amend her complaint to add a void-for-vagueness claim
challenging Senate Bill 24. She argues that such a claim is not futile because
persons of common intelligence must necessarily “guess at” the meaning of the
phrases “as many” and “prudent and practical” in the subsection of the bill
providing that “the board of regents shall facilitate the employment at
[UTRGV] . . . of as many faculty and staff of the abolished universities as is
prudent and practical.” Consequently, she argues, Senate Bill 24 is
unconstitutionally vague both on its face and as-applied to Hernandez.
       Appellees counter that an amendment to include Hernandez’s void-for-
vagueness claim in her complaint would have been futile because: (1)




       37 See City of New Orleans, 427 U.S. at 303.
       38 Though Hernandez vigorously disputes the existence of a disciplinary action against
her at all in making her substantive and procedural due process claims, for the limited
purpose of her equal-protection argument, she accepts—as she must—that she belongs to
that purported class of professors who had been disciplined within the seven years before the
UTRGV hiring decisions were made.
       39 See City of Clinton, 632 F.3d at 153.

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                                     No. 16-41565
intragovernmental mandates like that at issue in Senate Bill 24 are not
susceptible to vagueness challenges; and (2) the portions of Senate Bill 24 that
she challenges do not regulate private behavior and therefore are not amenable
to a void-for-vagueness challenge.
      In the public employment context, the government has “significantly
greater leeway in its dealings with citizen employees than it does when it
brings its sovereign power to bear on citizens at large.” 40                 Indeed, the
government, as employer, is endowed with much the same “broad discretion
that typically characterizes the employer-employee relationship” in other
contexts. 41
      Here, Senate Bill 24 effectively delegated to the Board the power to
choose, “prudent[ly] and practical[ly],” the UTB and UTPA professors to hire
at UTRGV. 42 Because Hernandez’s property interest in her tenured position
at UTPA was extinguished by way of legislation, the State then had “broad
discretion” in deciding whether to hire her anew as a professor at UTRGV. 43
      Though the context differs substantially from that at issue here, we find
instructive the Supreme Court’s recent decision in Beckles v. United States. 44
There, a defendant challenged the career criminal enhancement recommended
in the Sentencing Guidelines as unconstitutionally vague. 45 The Court found
that the Guidelines were not subject to a vagueness challenge because the
Guidelines “d[id] not fix the permissible range of sentences” available to a




      40 Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 599 (2008).
      41 See id. at 605.
      42 Act of May 22, 2013, 83d Leg., R.S., ch. 726, 2013 Tex. Gen. Laws 1846.
      43 See id. See supra for an analysis of Hernandez’s property interest.
      44 137 S. Ct. 886 (2017).
      45 See id. at 890.

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district court, which has “unfettered” discretion, but “merely guide[d] the
exercise of a court’s discretion in choosing an appropriate sentence.” 46
       Here, the State, as an employer, had inherently broad discretion to make
its own hiring decisions. 47 Senate Bill 24 merely provided the Board light
guidance in exercising that discretion. 48 Indeed, it is difficult to see how
legislative guidance regarding how the Board should undertake its
responsibilities could be vague without undermining the intragovernmental
relationships that facilitate the exercise of state governmental power. Because
amending Hernandez’s complaint to allege either a facial or as-applied
vagueness challenge would thus be futile, we affirm the district court on this
issue as well.
       III.   CONCLUSION
       For these reasons, we agree that Hernandez failed to state a plausible
claim for relief and therefore AFFIRM.




       46 Id. at 892.
       47 We do not and need not find here that the discretion accorded a State in its hiring
decision-making is so broad as to be “unfettered,” but the State’s discretion is broad enough
that the kind of guidance mandated by the statute is constitutional.
       48 Accord. Beckles, 137 S. Ct. at 894–95.

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