     Case: 12-40053       Document: 00512077169         Page: 1     Date Filed: 12/07/2012




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

                                                                            FILED
                                                                         December 7, 2012

                                       No. 12-40053                        Lyle W. Cayce
                                                                                Clerk

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,




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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) . . . .”1 The
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




      1
         Briscoe never responded to Defendants’ motion, allegedly because her counsel was
hospitalized for two weeks in late July following an accident in which he broke his hip.

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                                       No. 12-40053

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


                                      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



       2
          Although it purported to grant defendants’ “Rule 8(a)(2) motion,” the court is best
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.”).
       3
         Briscoe actually moved for a “new trial,” which the court recharacterized as a motion
to alter or amend a judgment pursuant to Rule 59(e).

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                                         No. 12-40053

claim.4 An issue not presented in the appellant’s opening brief is waived because
such failure denies the appellee the opportunity to respond.5 Briscoe, who is
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.6 Consequently, we shall not consider those claims.
       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.”7 To establish a First Amendment retaliation claim based on such
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

       4
        Of these two pages, all but two sentences either directly quote an out-of-circuit case
or transcribe an unpublished lecture by a law school professor describing that case.
       5
         See United States v. Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008); United States v.
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.”).
       6
        See FED. R. APP. P. 28(a)(9)(A) (appellant’s brief must contain “contentions and the
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).
       7
           Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).

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                                         No. 12-40053

in promoting efficiency; and (4) the speech precipitated the adverse employment
action.8 When considering whether a public employee spoke as a citizen, courts
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.10 But, even
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

       8
           Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007).
       9
        Garcetti, 547 U.S. at 421; see also Elizondo v. Parks, 431 F. App’x 299, 303 (5th Cir.
2011) (explaining the Fifth Circuit’s test, post-Garcetti).
       10
          Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n.19 (5th Cir. 2000) (“Arguments not
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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                                        No. 12-40053

Briscoe’s chain of command is not the dispositive consideration in identifying
citizen speech protected by the First Amendment.11 We conclude from facts
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.14 It is this element of the
district court’s analysis that Briscoe should have addressed. As she has failed




       11
          See Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007)
(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).
       12
         Cf. id. at 694 (distinguishing case from Pickering v. Bd. of Educ., 391 U.S. 563 (1968),
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).
       13
         We also are unpersuaded by Briscoe’s claim that because she was not required to
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.”).
       14
          See, e.g., Davis v. McKinney, 518 F.3d 304, 316-317 (5th Cir. 2008) (distinguishing
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).

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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.




       15
          The district court reasoned that, per Connick v. Myers, 461 U.S. 138 (1983), whether
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).

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