CA5 (11.23.04)

Constitution doesn't always protect against cronyism

In Alexander v. Eeds, the Fifth Circuit considered the § 1983 claims of police lieutenants who were denied promotion to the rank of narcotics service captain, allegedly because of cronyism and retaliation for protected speech. Among other things, the plaintiffs alleged that an examination used to select candidates for promotion was rigged to favor members of a social organization, the "Houston Bar-B-Que Club," to which the plaintiffs did not belong.

The district court granted summary judgment dismissing the claims of five plaintiffs, but denied summary judgment (based on qualified immunity) on the claims of the other two. The Fifth Circuit affirmed dismissal of the five, on grounds that their speech at issue concerned private matters, not public matters, and so was not protected. Held the court,

While the facts of this case give us great pause in as much as they reflect a very troubling promotion process, reeking of cronyism, within DPS, because the § 1983 actions are brought to us in the context of alleged First Amendment violations, the inquiry necessary leads us to conclude that Plaintiffs' claims are unsupported. Because the speech of [the five] was not protected by the First Amendment, the district court correctly gratned summary judgment on these § 1983 claims.

The district court also granted summary judgment for the five on the alternative ground of qualified immunity, but denied summary judgment on qualified immunity on the claims of the other two. With respect to the five, the Fifth Circuit affirmed. Since those plaintiffs failed to allege speech that was constitutionally protected, they failed to allege a violation of an established right. As for the remaining two, the Fifth Circuit reversed as to one (dismissing his claim), but affirmed as to the other (allowing his claim to stand). The decision in each plaintiff's case turned on whether the speech in question was protected, i.e., whether it addressed a matter of public concern.

Finally, the Fifth Circuit affirmed the district court's rejection of plaintiffs' equal-protection claim, on grounds that the Equal Protection Clause does not protect against cronyism:

"While we do not approve of promoting friends over others who may have superior objective qualifications, we cannot say that such a practice is not rationally related to a legitimate governmental objective. See Kotch v. Bd. of River Port Pilot Comm'rs., 330 U.S. 552, 563 (1947) (upholding nepitistic system of appointing State-employed pilots as rationally related to the legitimate governmental interest of "morale and espirit de corps")."

Expert testimony not always needed to prove design defect

In Malbrough v. Crown Equipment Corp., the Fifth Circuit held that under Louisiana law, a products-liability plaintiff does not necessarily need expert testimony to establish a design defect. The district court had granted the manufacturer's motion in limine to exclude plaintiff's expert because plaintiff failed to timely meet discovery deadlines. The manufacturer then moved for summary judgment, on grounds that the Louisiana Products Liability Act requires expert testimony to establish a prima facie case of design defect. The district court denied the motion, on grounds that a trier of fact could understand whether the design was defective without expert testimony. The district court and the Fifth Circuit granted the manufacturer permission to appeal, and the Fifth Circuit affirmed. The court found no Louisiana caselaw requiring that a plaintiff must always have expert estimony to establish a prima facie case of design defect. "Consequently, we hold that the district court did not err in refusing to recognize a per se requirement of expert testimony in all design defect cases under the LPLA."