     Case: 15-60046      Document: 00513288057         Page: 1    Date Filed: 11/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-60046                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MARK A. ANDERSON,                                                       November 30, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

CITY OF MCCOMB MISSISSIPPI,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:13-CV-263


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       The City of McComb, Mississippi (“McComb”) appeals the denial of its
motions for judgment as a matter of law, for a new trial, and for remittitur.
The district court denied these motions after a jury found McComb liable under
42 U.S.C. § 1983 for terminating Mark Anderson’s employment without due
process of law and awarded Anderson $150,000 in back pay. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60046
      As a city employee for the McComb Police Department, Anderson had a
property interest in continued employment. See Anderson v. City of McComb
(Anderson I), 539 F. App’x 385, 387 (5th Cir. 2013) (citing MISS. CODE ANN.
§§ 21-31-21 & 21-31-23). His employment thus could not be terminated against
his will without appropriate procedural due process. See id. (citing Nichols v.
City of Jackson, 848 F. Supp. 718, 721 (S.D. Miss. 1994)); see also McDonald v.
City of Corinth, 102 F.3d 152, 155 (5th Cir. 1996). In this case, the jury found
that: Anderson did not voluntarily give up his employment; McComb acted
through its governing body to terminate Anderson’s employment intentionally,
recklessly, or through gross negligence; Anderson was not provided due process
in his termination; Anderson would not have been terminated if he had been
afforded notice and an opportunity to be heard; and Anderson was due
$150,000 in back pay for the violation.
      McComb claims the evidence is legally insufficient to establish municipal
liability. However, law of the case precludes this argument. See United States
v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (“Under the law of the case
doctrine, an issue of fact or law decided on appeal may not be reexamined
either by the district court on remand or by the appellate court on a subsequent
appeal.” (citation omitted)); Crowe v. Smith, 261 F.3d 558, 562 (5th Cir. 2001)
(noting law of the case “applies regardless of whether the issue was decided
explicitly or by necessary implication”). Before this case reached the jury, the
parties filed cross-motions for summary judgment. The district court granted
McComb’s motion for summary judgment and denied Anderson’s motion,
dismissing, inter alia, Anderson’s § 1983 due process claim.          Anderson
appealed, and a different panel of this court reversed the district court’s
decision to dismiss Anderson’s § 1983 due process claim. See Anderson I, 539
F. App’x at 387–88. The panel remanded the § 1983 due process claim for trial,
holding that disputes of material fact remained over whether Anderson was
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                                   No. 15-60046
discharged against his will and without due process of law. The panel in
Anderson I also noted and rejected McComb’s argument that “even if his
termination violated procedural due process, Anderson has not established a
predicate for municipal liability.” 539 F. App’x at 388 n.2. Accordingly, based
on the facts in the summary judgment record, a panel of this court already
concluded that a reasonable jury could find that Anderson was involuntarily
terminated by the City of McComb without due process. If the record at trial
does not materially differ from the record on summary judgment, law of the
case binds this court to that conclusion—thereby defeating McComb’s
argument that the evidence was legally insufficient to support a finding of
municipal liability.
      Our review of the record and exchanges with counsel at oral argument
make clear that the trial record does not materially differ from the summary
judgment record.       Substantial evidence supports the jury’s verdict and
findings, including its findings regarding whether Anderson received adequate
due process before his employment was terminated. We discern no legal error,
clear error, or clear abuse of discretion in the district court’s denial of
McComb’s motions for judgment as a matter of law and for a new trial. See
generally Brown v. Bryan Cty., 219 F.3d 450, 456–57 (5th Cir. 2000); Hidden
Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998).
      Likewise, we detect no clear error in the jury’s damages award. See
Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1476 (5th Cir.
1991). Anderson requested $384,413 in back pay, and a reasonable jury could
have concluded that Anderson was entitled to $150,000. 1
      AFFIRMED.


      1 We decline to address whether Anderson is entitled to an additur, finding this
argument abandoned due to inadequate briefing. See generally Brinkmann v. Dall. Cty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); FED. R. APP. P. 28(a)(8).
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