                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                             No. 97-20980


                            LEWIS ANDERSON,

                                                    Plaintiff-Appellant,

                                VERSUS

  PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE
MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,
            JR., FRED ROBERTS and FREDRICK SCHNEIDER,

                                                Defendants-Appellees.

                           consolidated with


                             No. 98-20384


                            LEWIS ANDERSON,

                                                    Plaintiff-Appellee,

                                VERSUS

  PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE
MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,
            JR., FRED ROBERTS and FREDRICK SCHNEIDER,

                                               Defendants-Appellants.


          Appeal from the United States District Court
               for the Southern District of Texas


                            August 5, 1999
Before DAVIS, STEWART and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:

     Lewis Anderson (“Anderson”), appeals the dismissal of his

federal claims   against    defendants   Pasadena    Independent   School

                                   1
District (“PISD”), PISD Superintendent Frederick Schneider and PISD

School Board members Nelda Sullivan, Vickie Morgan, Ted Sullivan,

Carmen Orozco, Bob Blair, Marshall Kendrick, Jr., and Fred Roberts.

We affirm in part, reverse in part and remand this case to the

district court.      In a consolidated appeal, defendants appeal a

monetary sanction related to an order for remand to state court.

We dismiss the appeal of sanctions for lack of jurisdiction.

                              I. PROCEEDINGS

     On November 6, 1995, Anderson filed suit pursuant to 42 U.S.C.

§ 1983 alleging that the defendants took adverse employment action

against him because he opposed a school bond election and an

administrative reorganization.         He claimed violation of his free

speech rights, and asserted state law claims as well.1

     The individual defendants moved to dismiss the suit, pursuant

to Federal Rule of Civil Procedure 12(b)(6), on the basis of

qualified immunity and requested the district court to prohibit

discovery until the qualified immunity claim was resolved.             On May

17, 1996, after a hearing, the district court ordered Anderson to

replead    his   claims    with   particularity   in   order   to   overcome

defendants’ assertions of qualified immunity.            Anderson filed his

Second Amended Complaint on June 21, 1996, adding claims that

defendants violated his rights to freedom of association and due

process.    The individual defendants again filed for Rule 12(b)(6)

dismissal   claiming      qualified   immunity.    The    magistrate   judge

     1
      The procedural history of Anderson’s claims related to age
discrimination are not detailed here because those claims are not
the subject of this appeal.

                                      2
entered a memorandum and recommendation, Anderson filed objections,

and the magistrate judge issued a clarification. On April 2, 1997,

the district court granted the individual defendants’ motion to

dismiss, adopting the magistrate judge’s conclusions that 1) in

suits against public officials, the defense of qualified immunity

mandates a heightened pleading standard which Anderson’s pleadings

did not meet, 2) the speech in question did involve a matter of

public concern, and 3) Anderson failed to establish that his

interest in free speech outweighed the school district’s interest

in the smooth and efficient operation of the district.                  The

district court based its dismissal on the outcome of the First

Amendment balancing test and never directly ruled on the individual

defendants’ claims of qualified immunity.

     PISD   subsequently   filed   a   motion   to   dismiss,   which   the

magistrate judge recommended granting on essentially the same basis

as the earlier order of dismissal. The district court adopted that

recommendation, dismissed Anderson’s federal claims with prejudice

and Anderson’s pendant state law claims without prejudice.

     Anderson refiled his state law claims in Texas state court.

Defendants removed the action2 and Anderson moved to remand.            The

district court remanded the case to state court and ordered the

defendants to pay $2000 in court costs, expenses and attorneys fees

for the improper removal of the case, which the district court

      2
       The original 1995 case was assigned to the Honorable Sim
Lake. Upon removal in 1998, the case was assigned to the Honorable
Kenneth Hoyt. We refer in this opinion to actions taken by the
“district court” without attempting to designate which judge signed
any particular order.

                                   3
found was done for the purpose of delay.          Defendants filed a motion

to reconsider remand.      The district court denied the motion to

reconsider and ordered defendants to pay $2000 “as reasonable

attorney’s fees and expenses incurred in filing the motion to

reconsider motion to remand.”

       Anderson appeals the dismissal of his federal claims.           In a

consolidated appeal, defendants appeal the sanctions imposed for

improper removal.

                                 II. FACTS

       Anderson’s Second Amended complaint alleges the following

facts.

       Anderson was first hired by PISD in 1962 as a teacher.             He

received    promotions     through       the   years,    holding     various

administrative positions in PISD’s special education program.             In

1990, Anderson was promoted to Area Superintendent.              During the

first 33 years of employment with PISD, Anderson never received a

negative evaluation.

       In 1994 and 1995, Anderson voiced criticism of an upcoming

bond   election   which   the   School    Board   and   the   Superintendent

favored.    Anderson also supported a candidate who was running

against an incumbent board member who was up for re-election.

Thereafter, defendants began efforts to oust Anderson from his

position.

       In April 1995, Superintendent Schneider advised Anderson that

his assistant Michael Fowler was being demoted and that a new

Deputy Superintendent position was being created.             Anderson would


                                     4
report to the new Deputy instead of directly to Superintendent

Schneider, as he had in the past.       Anderson was not eligible to

apply for the newly created position because it required prior

experience as a school principal, which Anderson did not have. The

new position was filled without adhering to the PISD policy of

advertising job openings.

     During the summer of 1995, the board hired a private detective

who conducted surveillance of Anderson, a non-incumbent school

board candidate who Anderson supported and some of Anderson’s other

associates.   In August of 1995, Schneider called Anderson to his

office and proposed that Anderson agree to resign (relinquishing

his contract right to two additional years of employment at more

that $70,000 per year) and to “publicly and privately support the

proposed   election   to   issue   bonds”   in   exchange    for   $30,000.

Anderson was told that if he did not agree, he would be reassigned

to transportation, food services or maintenance -- all low-level,

dead end jobs.     Anderson refused to sign the agreement, stating

that he felt that it was illegal.

     A few days after his refusal, Anderson was reassigned to the

newly created position of Associate Superintendent for Project

Management and given responsibilities which had previously been

handled, for the most part, by a secretary.         Again, the position

was not advertised in accordance with PISD policy.          Anderson’s pay

was not changed.

     On October 30, 1995, Anderson received his first negative

evaluation in thirty-three years with PISD, in which Superintendent


                                    5
Schneider directly reprimanded Anderson for speaking out on the

bond election and PISD’s reorganization.          Schneider made it clear

that Anderson was free to speak out on these issues “outside of

work” but that “such comments at work are inappropriate, disruptive

and will not be tolerated.”          During the same time period, the

administration spoke out in support of the bond election during

mandatory faculty meetings and other district functions, making

PISD work-time a public forum for considering the bond election

issues.

      Anderson contends that the allegedly unconstitutional actions

were taken by the defendants, individually and acting as a body,

but   that   he   cannot   know,   prior   to   discovery,   precisely   who

instigated or authorized the actions because the actions originated

in closed board meetings.

                  III. RULE 12(b)(6) ORDERS OF DISMISSAL

A. Standard of review

      A Rule 12(b)(6) order of dismissal for failure to state a

claim on which relief can be granted is reviewed de novo, and “will

not be affirmed unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.”       Blackburn v. City of Marshall, 42 F.3d

925, 931 (5th Cir. 1995).

      In reviewing defendants’ claim of qualified immunity, we must

first ascertain whether Anderson has sufficiently asserted the

violation of a constitutional right.        See Rankin v. Klevenhagen, 5

F.3d 103, 105 (5th Cir. 1993).        Second, we must determine whether


                                      6
defendants’ conduct was objectively reasonable in light of law

clearly established at the time of the incident.            See Salas v.

Carpenter, 980 F.2d 299, 310 (5th Cir. 1992).

B.   Heightened Pleading Requirement – Individual Board Members

     The magistrate judge’s Memorandum and Recommendation, adopted

by the district court, states that “Anderson has not satisfied the

heightened pleading standard in order to overcome the defense of

qualified immunity. Accordingly, it is RECOMMENDED that Anderson’s

claims against the individual board members be DISMISSED.”             The

magistrate judge then goes on to recommend dismissal of these

defendants based on an independent, alternative ground. On appeal,

Anderson challenges the district court’s ruling regarding the

“heightened pleading standard,” contending that his Second Amended

Complaint was sufficient to state a cause of action and to overcome

the defendants’ claims of qualified immunity.

     The Supreme Court abrogated the Fifth Circuit heightened

pleading requirement for actions against municipalities, but did

not consider whether qualified immunity jurisprudence would require

heightened   pleading   in   cases       against   individual   government

officials. See Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163, 166-67 (1993).             This court

thereafter declined to abandon the requirement, articulated in

Elliott v. Perez 751 F.2d 1472 (5th Cir. 1985), that plaintiffs

suing governmental officials in their individual capacities must

allege specific conduct giving rise to a constitutional violation.

See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).         However,


                                     7
no heightened pleading is required in actions against individual

defendants in their official capacities, because “official-capacity

lawsuits are typically an alternative means of pleading an action

against the governmental entity involved[.]”               Baker v. Putnal, 75

F.3d 190, 195 (5th Cir. 1996).         Anderson sued the board members and

the superintendent in their individual capacities only.                 In order

to survive, those actions “must be pleaded with ‘factual detail and

particularity,’ not mere conclusionary allegations.”                  Jackson v.

Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996)(quoting Schultea, 47

F.3d at 1430).

     In order to state a cause of action under § 1983, Anderson

must identify defendants who were either personally involved in the

constitutional violation or whose acts are causally connected to

the constitutional violation alleged.             See Woods v. Edwards, 51

F.3d 577, 583 (5th Cir. 1995).              It is not enough to allege that

government officials with no direct contact with a plaintiff are

responsible for acts of their subordinates.                See id.    Anderson’s

Second Amended complaint alleges that the board members and the

superintendent      made   specifically         enumerated    decisions      that

adversely    impacted      his   employment        in   violation       of   his

constitutional      rights.      Anderson       candidly     admits   that   the

defendants   made    decisions    in    closed     meetings    that    precluded

Anderson from knowing, prior to discovery, whether each defendant

voted for or dissented from those decisions.                 However, Anderson

makes no attempt to hold the individual defendants liable for

actions or decision of their subordinates with which they had no


                                        8
involvement,       but    rather     seeks       to   establish       each      defendant’s

responsibility for his or her own actions.                      We find that Anderson

pleaded with sufficient particularity facts establishing a causal

connection      between      defendants’         actions      and   decisions         and   the

alleged constitutional violations.                        We therefore hold that the

district court’s conclusion that Anderson’s complaint lacked the

factual specificity required to overcome the defense of qualified

immunity was error.

C. First Amendment Claims

      It   is   well     established      that        a    state    may   not    discharge,

discipline, or otherwise retaliate against a public employee for

exercising his First Amendment right to free speech. See Rankin v.

McPherson, 483 U.S. 378, 383 (1987).                  However, a public employee’s

right to free speech is limited when it conflicts with his role as

a public employee.           See Kinsey v. Salado Indep. School Dist., 950

F.2d 988, 992 (5th Cir. 1992).              In order for speech to be entitled

to   protection,       the    plaintiff      must         establish    that     his    speech

addressed a matter of public concern.                      See Click v. Copeland, 970

F.2d 106, 111 (1992)(citing Connick v. Myers, 461 U.S. 138, 146-47

(1983)).    If the plaintiff’s speech does not relate to a matter of

public concern, the court’s inquiry ends.                       See id.       If, however,

the court concludes that the speech at issue meets the threshold

inquiry,    then    the      court   must    balance         “the     interests       of    the

[employee], as a citizen, in commenting upon matters of public

concern [against] the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through


                                             9
its employees.’” Id. (quoting Pickering v. Board of Educ. Of Tp.

High School Dist., 391 U.S. 563, 568 (1968).

       When a plaintiff’s claims arise under both freedom of speech

and freedom of association, as in the case at bar, the freedom of

association claims are analyzed under the same Pickering balancing

test used to determine the success of the freedom of speech claims.

See O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712

(1996).      We therefore balance Anderson’s First Amendment rights

of   free   speech    and    free   association     against     the   defendants’

interests in efficiently providing public education to the students

of PISD.

       We begin by noting that whether Anderson’s speech addressed a

matter of public concern is a question of law.                  See Tompkins v.

Vickers, 26 F.3d 603, 606 (5th Cir. 1994).                   The district court

concluded,    and     the    parties   do    not   dispute    on    appeal,     that

Anderson’s speech regarding the district bond election and the job

performance of the individual defendants involved matters of public

concern.    We agree.

       We move then to the focus of this appeal, the Pickering

balance struck by the district court, remaining mindful that we

must   “‘tailor      the    analysis   to    the   particular      facts   of   each

case[.]’”    Nieto v. San Perlita Indep. School Dist., 894 F.2d 174,

180 (5th Cir. 1990)(quoting Matherne v. Wilson, 851 F.2d 752, 760

n.48 (5th Cir. 1988)).

       Central to the district court’s decision is its reliance on

Kinsey v. Salado Indep. School Dist., 950 F.2d 988 (5th Cir. 1992),


                                        10
which it found factually analogous to the case at bar.                  In Kinsey,

a suspended public school superintendent brought a § 1983 action

against the school board alleging violation of his First and

Fourteenth Amendment rights to speak out concerning the performance

of elected school board members.              See id. at 991.      The district

court    granted       summary   judgment     for    defendants    on    Kinsey’s

Fourteenth Amendment claims and, after trial, granted a judgment

notwithstanding the verdict on his First Amendment claims. See id.

at 991-92.      The Fifth Circuit en banc court affirmed.               See id. at

997.

       Like the district court, we conclude that Kinsey provides

guidance    by    setting    out   the    legal     framework     for    analyzing

Anderson’s First Amendment claims.            However, we find it impossible

to dispose of Anderson’s claims at this stage of the proceedings on

the basis of a Kinsey analysis because we do not have the benefit

of facts sufficient to flesh out the framework.

       Kinsey instructs us to consider whether a close working

relationship between Anderson and the individual defendants is

essential.       See id. at 995.         Because Texas law provides for a

school board and a superintendent for each public school district,

we examined the applicable statutory language to discern the

parameters of the relationship between Kinsey and the board member

defendants. See id.        There is no provision in Texas law setting out

the    duties    and    responsibilities      of    “Area   Superintendent”      or

“Associate      Superintendent     for   Project     Management”    to    give   us

guidance in this case.             Further, the trial record in Kinsey


                                         11
established that “[o]ne of Kinsey’s primary duties was to advise

the Board,” and to attend executive board sessions and offer

opinions and recommendations to guide its decisions.                         See id.

Kinsey    also    handled      the    School      District    finances     and    made

recommendations on hiring teachers and principals. See id. at 996.

Kinsey was custodian of the School District’s confidential records

including personnel files, sealed bids, working papers on proposed

rules and policies, and student records, and was called on to

advise the Board concerning these and other confidential matters.

See id.        Relying on the well developed, fact intensive trial

record, we concluded that it was essential for Kinsey to have a

close working relationship with the defendant board members and

that    their    relationship        had   been   disrupted    to    the    point    of

precluding effective performance by Kinsey.                  See id.

       In contrast, the district court in the case at bar considered

Anderson’s statement in his Second Amended Complaint that he

“supervised       half    of     the       district     campuses,”         Anderson’s

characterization of his position as “high profile” and “second-in-

command,” and his participation in the superintendent’s “informal

cabinet” to conclude that Anderson would not be able to effectively

carry    out    his   duties    while      opposing    the    bond     election     and

supporting a non-incumbent candidate for the board. As illustrated

by the analysis in Kinsey, Anderson’s ability to effectively carry

out his duties is a fact-intensive inquiry that requires, at a

minimum, evidence or stipulations concerning what those duties

were. Without benefit of summary judgment evidence, trial, or even


                                           12
rudimentary discovery, the record in this case is not sufficient to

perform a Pickering balancing test.          In addition, Anderson’s

complaint can be read to allege that he previously supported some

of the present board members when they were “non-incumbent” and

continued to successfully fulfill his responsibilities to the

school district.        We must therefore reverse the trial court’s

dismissal of Anderson’s First Amendment claims.

D. Due Process Claims

     Anderson alleges that his rights to due process were abridged

when he was demoted from Area Superintendent, which required a

certification, to Associate Superintendent, which did not, because

positions lacking a certification requirement do not carry the

benefits of a written employment contract which he enjoyed as Area

Superintendent.    The district court rejected this argument holding

that Anderson did not plead a constitutionally protected property

interest in any non-economic benefit and that, because his salary

was not reduced when he was reassigned, he had alleged no due

process violation.

     On appeal, Anderson makes a conclusory statement that he has

pleaded a due process right associated with school employment

contracts, citing to a page in Kinsey that does not exist, and to

the “fact,” which does not appear in the record before us, that he

has subsequently been forced into early retirement.          In Kinsey, we

rejected a due process property interest claim to the non-economic

benefit   of   duties    and   responsibilities   of   the   position   of

superintendent.    See Kinsey, 950 F.2d at 996-97.            There is no


                                    13
mention in Kinsey of Anderson’s theory of due process rights

growing out of school employment contracts.                   We see no basis in

Anderson’s Second Amended Complaint, in the briefs or in pertinent

authority       for    reversing    the   district        court’s   Rule      12(b)(6)

dismissal of Anderson’s due process claims.

                                   IV. SANCTIONS

       After the district court dismissed Anderson’s state claims

without prejudice, he refiled those claims in Texas court and the

defendants removed them to federal court.                  The defendants appeal

the sanctions imposed by the district court in its order remanding

that    action    to    state    court.        Anderson    urges    us   to   dismiss

defendants’      appeal    of    the   orders     for   sanctions    for      lack   of

jurisdiction.          Finding merit in that argument, we dismiss the

appeal in case number 98–20384.

       The district court entered two orders regarding sanctions.

The    first,    entered    on     February     20,   1998,   ordered      “that     the

defendants shall pay a reasonable and necessary fee of $2000.00 in

court costs, expenses and attorney fees for the improper removal of

this case[.]”          Defendants filed a motion for reconsideration of

that order on March 2, 1998.           The district court denied the motion

on April 17, 1998, ordering “that defendants shall pay the counsel

for plaintiff . . . the sum of $2000.00 as reasonable attorney’s

fees and expenses incurred in filing the motion to reconsider

motion to remand.”          Defendants filed their notice of appeal on

April 27, 1998, appealing

       from the Order entered in this action on April 17, 1998,
       denying reconsideration of the Court’s award of

                                          14
       “$2,000.00 in court costs, expenses and attorney’s fees
       for . . . improper removal, which the Court [found] was
       done for purposes of delay,” as set forth in its Order
       for Remand of February 20, 1998, from which appeal is
       also taken to that extent.

       Federal Rule of Appellate Procedure 4(a)(1)(A) provides that,

in a civil case, the notice of appeal must be filed with the

district clerk within thirty days after entry of the judgment or

order appealed from.      The Notice of Appeal was filed 66 days after

the February 20, 1998 Order of Remand, but within the thirty day

appeal window after the April 17, 1998 order.

       Defendants    contend    that    their      Motion     for   Reconsideration

extended the time within which they could appeal the April 17, 1998

Order of    Remand.      Under    Federal         Rule   of   Appellate   Procedure

4(a)(4), the timely filing of certain post-decision motions defers

the start of the appeal period until disposition of the motion.

The motions that will extend or toll the thirty-day time limit

under    Rule    4    include:     1)        a     motion     under    Civil    Rule

50(b)(insufficient evidence for judgment); 2) a motion under Civil

Rule 52(b)(to amend judgment or make additional findings of fact);

3) a motion under Civil Rule 60 (for relief from a judgment); 4) a

motion for attorney’s fees by the prevailing party under Civil Rule

54; 5) a motion for new trial under Civil Rule 59(a); and 6) a

motion to amend or alter judgment under Civil Rule 59.                    Defendants

argue that we should treat their motion for reconsideration as a

Rule    59(e)   motion   to    alter    or       amend   judgment.      We   cannot.

Defendants’ motion for reconsideration sought only to have the

monetary sanctions vacated and “such other and further relief to


                                        15
which Defendant may show themselves justly entitled.”           Because the

question   of    sanctions    raised       in   defendants’     motion   for

reconsideration is collateral to the determination of the merits of

the motion to remand, it does not amount to a Rule 59(e) motion

triggering Rule 4(a)(4). See Campbell v. Bowlin, 724 F.2d 484, 488

(5th Cir. 1984)(overruled on other grounds by United States v.

Clark, 51 F.3d 42 (5th Cir. 1995)).             Therefore, the notice of

appeal   filed   66   days   later   did    not   vest   this   court    with

jurisdiction to review the sanction order imposed by the February

20, 1998 order of remand.     Further, the notice of appeal is limited

by its terms to the $2000.00 sanction order contained in the

February 20, 1998 order, and so is not effective in appealing the

$2000.00 sanction imposed by the April 17, 1998 order.3                   We

conclude that we have no jurisdiction to review the propriety of

either sanction order and consequently must dismiss the appeal.

                              V. CONCLUSION

     The judgment appealed in case number 97-20980 is AFFIRMED in

part, REVERSED in part and REMANDED to the district court for

    3
     Approximately six weeks after filing their notice of appeal,
defendants filed a motion for leave to file Amended Notice of
Appeal.    While maintaining that the second sanction order
reaffirmed the first $2000 sanction, rather than imposing an
additional $2000 sanction, the defendants sought, “in an abundance
of caution” to “also appeal any additional sanction that may have
been assessed by the Court in its April 17, 1998 Order.”        On
September 23, 1998, the district court denied the motion stating
that an amended notice of appeal was unnecessary because only one
sanction was assessed. However, we are constrained by the plain
language of the two sanction orders and cannot base our
jurisdiction on language by the district court interpreting those
orders five months after the notice of appeal was filed and after
the district court lost jurisdiction to clarify or modify the
sanctions.

                                     16
further proceedings consistent with this opinion.

     AFFIRMED in part, REVERSED in part and REMANDED.

     The appeal in case number 98-20384 is DISMISSED.

     DISMISSED.




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