Thomas Howell v. Town of Ball
827 F.3d 515
5th Cir.2016Background
- Howell, a Ball, Louisiana police sergeant, secretly cooperated with an FBI investigation into alleged FEMA fraud by the mayor and other municipal officials; he wore a wire and recorded conversations.
- After indictments of several officials, Police Chief Caldwell learned of Howell’s cooperation, questioned and harassed Howell, and later recommended Howell’s termination following a confrontation; the Board of Aldermen voted unanimously to fire Howell.
- Howell sued under 42 U.S.C. § 1983 for First Amendment retaliation and under the False Claims Act (FCA), 31 U.S.C. § 3730(h), alleging he was discharged for protected whistleblowing.
- The district court dismissed Howell’s First Amendment claims against all individual defendants (granting qualified immunity) and dismissed FCA claims against individual defendants, but denied summary judgment as to the FCA claim against the town of Ball; the court entered a Rule 54(b) certification for the dismissed claims.
- On appeal, the Fifth Circuit held Howell’s cooperation with the FBI was speech entitled to First Amendment protection (i.e., not clearly within ordinary job duties), but that right was not "clearly established" at the time of the firing; it therefore affirmed qualified immunity for individual defendants, reversed summary judgment for the town of Ball on the § 1983 claim (Monell), and affirmed dismissal of FCA claims against the individuals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Howell’s cooperation with the FBI is protected First Amendment speech (Garcetti/Lane) | Howell: secretly aiding an outside investigation and wearing a wire was outside his ordinary duties and thus citizen speech protected by the First Amendment | Defendants: police duty to detect/prevent crime encompasses cooperating with outside law enforcement, so speech was pursuant to official duties and unprotected | Court: Howell’s conduct was not shown to be within his ordinary job duties and is protected speech; district court erred on this point |
| Whether individual defendants are liable (qualified immunity) | Howell: defendants retaliated for protected speech, violating clearly established rights | Defendants: Garcetti/Lane application to these facts was unsettled; no clearly established right at the time | Court: right was not clearly established when Howell was fired; individual defendants entitled to qualified immunity — affirmed |
| Whether the town of Ball is liable under Monell for municipal retaliation | Howell: Board ratified Caldwell’s retaliatory motive or itself harbored animus; evidence (Howell’s statement at hearing, witness admission) creates a genuine issue | Ball: no municipal liability; Board decision lawful and final policymaker did not act from retaliatory motive | Court: genuine dispute of material fact whether Board ratified or was motivated by retaliation; vacated summary judgment for town and remanded for further proceedings |
| Whether the FCA § 3730(h) permits suits against individual non-employer defendants | Howell: 2009 FCA amendments removed explicit "employer" language and broaden liability to contractors/agents and non-employer individuals | Defendants: amendment meant to include contractors/agents as plaintiffs, not to create individual defendant liability; precedent treated only employers as liable | Court: no persuasive authority that Congress intended to impose individual non-employer liability; affirmed dismissal of FCA claims against individuals |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (speech made pursuant to official duties is not protected)
- Lane v. Franks, 134 S. Ct. 2369 (clarified inquiry: whether speech is ordinarily within scope of duties)
- Monell v. Dep't of Soc. Servs., 436 U.S. 658 (municipal liability for constitutional violations by official policy or final policymaker)
- Gibson v. Kilpatrick, 773 F.3d 661 (5th Cir. 2014) (application of Garcetti/Lane to police reporting to external agencies)
- Plumhoff v. Rickard, 134 S. Ct. 2012 (qualified immunity requires clearly established right contours)
- Ashcroft v. al–Kidd, 131 S. Ct. 2074 (qualified immunity framework)
- Pembaur v. City of Cincinnati, 475 U.S. 469 (single decision by final policymaker can impose municipal liability)
- Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595 (5th Cir. 2001) (ratification of subordinate’s decision and reasoning imputes motive to municipality)