REVISED - December 30, 1999

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30978

REXFORD KIPPS, CAROL KIPPS AND KYLE KIPPS,

Plaintiffs-Appellants,

versus

JAMES CAILLIER, RAY AUTHEMENT, NELSON J. SCHEXNAYDER, JR., AND NELSON STOKLEY,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Louisiana

December 6, 1999 Before WIENER, DeMOSS and PARKER, Circuit Judges. ROBERT M. PARKER, Circuit Judge:

Plaintiffs appeal the district court's orders denying their

motion in limine, dismissing the case for failure to state a

claim and granting defendants' motion for summary judgment. We

VACATE in part and AFFIRM in part.

FACTUAL HISTORY AND PROCEEDINGS BELOW

Rexford Kipps (“Kipps”) was an assistant football coach at

the University of Southwestern Louisiana (“USL”) for

approximately eleven years. Kipps's son, Kyle Kipps (“Kyle”),

was a talented football player in southern Louisiana. Kyle was

actively recruited by several universities in 1996 and 1997. In March of 1996, Nelson Stokley (“Stokley”), USL's head

football coach, told Kipps that if Kyle did not attend USL, then

he was to attend a college or university outside of Louisiana.

Stokley warned Kipps that under no circumstances was Kyle to

attend a Louisiana university other than USL.

On February 2, 1997, Kyle notified Stokley that he had

orally committed to attend Louisiana State University (“LSU”) on

a football scholarship and that this commitment would soon be

reduced to writing. The next day, Stokley advised Kipps that he

was to forbid Kyle to memorialize the oral commitment to play

football for LSU. Kipps responded that he would not (indeed,

could not) command his son to refuse to reduce the verbal

commitment to writing.

Based on Kyle's decision to attend LSU, Stokley terminated

Kipps's employment with USL. In a February 20, 1997, letter,

Nelson Schexnayder, Jr. (“Schexnayder”), USL Director of

Athletics, advised Kipps, based on Stokley's recommendation, that

Kipps's employment with USL would be terminated effective June

30, 1997. Ray Authement (“Authement”), President of USL, was

provided with a copy of this letter and subsequently approved

Kipps's termination. Additionally, James Caillier (“Caillier”),

President of the Board of Trustees for Louisiana State Colleges

and Universities approved Kipps's termination.

On July 22, 1997, plaintiffs instituted an action against

Stokley, Schexnayder, Authement and Caillier, in their individual

2 capacities, asserting, inter alia, constitutional claims and

Louisiana state law claims. On August 28, 1997, defendants

Stokley, Schexnayder and Authement filed a motion to dismiss

pursuant to FED. R. CIV. P. 12(b)(6). This motion was amended

shortly thereafter to add Caillier.

On October 31, 1997, the district court denied defendants'

motion to dismiss the claims asserted under

(1994) and granted defendants' motion as to the pendent state law

claims under LA. CIV. CODE ANN. art. 2315.6 (West 1999) and LA. REV.

STAT. ANN. § 23:631 (West 1999).

Stokley, Schexnayder and Authement next filed a motion for

summary judgment pursuant to FED. R. CIV. P. 56, asserting, inter

alia, that the at-will employment status of Kipps precluded any

wrongful termination action; that the defendants were entitled to

qualified immunity; and that Kipps's termination was justified

due to the effect that Kyle's choice of colleges would have on

USL's ability to recruit athletes and on alumni relations. The

next day, these defendants also filed a motion for sanctions

against plaintiffs' counsel. On March 27, 1998, Caillier filed a

summary judgment motion asserting, inter alia, that he did not

participate in Kipps's termination and that Kipps's at-will

employment status precluded a wrongful termination claim.

Plaintiffs moved to oppose the summary judgment motions and the

motion for sanctions. In addition, plaintiffs filed motions in

limine to exclude, inter alia, the following: (1) the qualified

immunity defense and (2) the justification defense.

3 The district court denied plaintiffs' motions in limine and

granted Stokley, Schexnayder and Authement's motion for summary

judgment on qualified immunity grounds. The district court

granted appellee Caillier's motion for summary judgment on

similar grounds and granted defendants' motion for sanctions

against plaintiffs' counsel.

Plaintiffs invoke the jurisdiction of this court pursuant to

(1994) and present the following issues for

interlocutory appeal:

1. Did the district court commit reversible error in dismissing plaintiffs' claims based on the theory that “Qualified Immunity” exempted the defendants from liability?

2. Did the district court commit reversible error in refusing to grant plaintiffs' Motion to Exclude any Evidence as to the Defense of Justification?

3. Did the district court commit reversible error when it sanctioned plaintiffs' counsel?

4. Did the district court commit reversible error in dismissing plaintiffs' pendant state law claims under LA. CIV. CODE ANN. art. 2315.6 (West 1999)?

SECTION 1983 CLAIM

The district court granted defendants' summary judgment and

dismissed plaintiffs' constitutional claims based on the doctrine

of “Qualified Immunity.” We review a grant of a summary judgment

de novo. See Steadman v. Texas Rangers,

(5th

Cir. 1999). Summary judgment shall be entered in favor of the

moving party if the record, taken as a whole, "show[s] that there

is no genuine issue as to any material fact and that the moving

4 party is entitled to a judgment as a matter of law." FED. R. CIV.

P. 56(c). A factual dispute is "genuine" where a reasonable jury

could return a verdict for the nonmoving party. See Crowe v.

Henry,

(5th Cir. 1997). If the record, taken

as a whole, could not lead a rational trier of fact to find for

the non-moving party, then there is no genuine issue for trial.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986); Scales v. Slates,

(5th Cir.

1999).

Qualified Immunity

Public officials acting within the scope of their official

duties are shielded from civil liability by the qualified

immunity doctrine. See, e.g., Harlow v. Fitzgerald,

(1982); Morris v. Dearborne,

(5th

Cir. 1999). Government officials are entitled to qualified

immunity “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow,

.1

In order to establish that the defendants are not entitled

to qualified immunity, plaintiffs must satisfy a three-part test.

See, e.g., Morris,

. First, “[a] court evaluating

1 With the announcement of this wholly objective standard, the Supreme Court rejected the subjective, good faith element of the qualified immunity defense adopted in Wood v. Strickland,

(1975). Cf. Schultea v. Wood,

(5th Cir. 1995) (“The Court's deletion of the subjective element of good faith rested on the pragmatic judgment that it 'frequently has proved incompatible with our admonition . . . that insubstantial claims should not proceed to trial.'”) (quoting Harlow,

)).

5 a claim of qualified immunity must first determine whether the

plaintiff has alleged the deprivation of a constitutional right

at all.” Wilson v. Layne, --- U.S. ---, ---,

(1999); see also Morris,

. Second, the court

must “determine whether that right was clearly established at the

time of the alleged violation.” Wilson, --- U.S. at ---,

. Finally, the court “must determine whether the

record shows that the violation occurred, or at least gives rise

to a genuine issue of material fact as to whether the defendant

actually engaged in the conduct that violated the clearly-

established right.” Morris,

(quoting Kerr v.

Lyford,

(5th Cir. 1999)).2 If it is determined

that the official's conduct was unconstitutional, then the court

must decide whether the conduct was nonetheless “objectively

reasonable.” See Eugene v. Alief Indep. School Dist.,

(5th Cir. 1995).

Assuming arguendo that defendants violated Kipps's clearly

established constitutional liberty interest3 in familial

association,4 the resolution of this issue turns on whether the

defendants' actions were “objectively reasonable.” Because we

2 This prong is not at issue since defendants do not challenge the core facts as asserted by plaintiffs. 3 In addition to the issues we address in this opinion, plaintiffs claim that the district court committed an additional error when it converted plaintiffs' claimed liberty interest into a property interest. Because we assume the existence of such interest, it is not necessary for us to reach this question. 4 Whether a constitutional liberty interest is implicated by the facts of this case is highly questionable.

6 find that defendants' actions were objectively reasonable, we

affirm the district court's dismissal of Kipps's 1983 claim on

the basis of qualified immunity.

Even if defendants violated Kipps's clearly established

constitutional right, they are still entitled to qualified

immunity if their actions were objectively reasonable.

“Objective reasonableness is a matter of law for the courts to

decide, not a matter for the jury.” Williams v. Bramer,

(5th Cir. 1999); see also Wilson, --- U.S. at ---,

(“[W]hether an official protected by qualified

immunity may be held personally liable for an allegedly unlawful

official action generally turns on the 'objective legal

reasonableness' of the action.”) (quoting Anderson v. Creighton,

(1987)).

The record indicates that Kipps was fired because his son

chose to play football for a Louisiana school other than USL.

Notwithstanding the defendants' subjective motivation and belief

as to the lawfulness of their conduct,5 we find the defendants'

5 Defendants appear to argue on brief that because Kipps was an at-will employee, it was reasonable to fire him for any reason whatsoever. Kipps's status as an at-will employee is irrelevant to our analysis of this issue. It is well established in this Circuit that public authorities may not discharge an at- will employee for exercise of his constitutionally protected rights.

Although public school authorities may discharge an employee unprotected by a reasonable expectation of continued employment for any job-related reason or for no reason at all, it is well established that they may not do so for a reason which infringes “constitutionally protected rights.”

7 motivation for terminating Kipps was objectively reasonable. See

Pfannstiel v. City of Marion,

(5th Cir. 1990)

(holding that “even an officer who subjectively intends to act

unreasonably is entitled to immunity if his actions are

objectively reasonable”) (citing Malley v. Briggs,

(1986)). Defendants' motivation, according to the record in

this case, was to mitigate the damage that Kyle's attendance at

LSU as opposed to USL would have on alumni relations and

recruiting efforts.6

The summary judgment record of this appeal contains no facts

Brantley, 718 F.2d at 1358 (quoting Perry v. Sindermann,

(1972)). Defendants' counsel conceded this point at oral argument. Furthermore, the policy of the Board of Trustees allowing for the firing of an at-will employee, as interpreted by defendants, is also irrelevant to our analysis of this issue. “Such a policy, of course, could not make reasonable a belief that was contrary to a decided body of case law.” Wilson, --- U.S. at ---,

. See also Babb, 33 F.3d at 478 n.8 (holding that city policy regarding arrest procedure is irrelevant to qualified immunity analysis). 6 Similar considerations are part of the balancing test inherent in defendants' alternative defense of justification. Because we affirm the district court's dismissal of plaintiffs' claims based on qualified immunity, we do not speak to its ruling on justification except to comment on a key element of the defense: the proffered expert opinion of Spike Dykes. Under this Circuit's pre-Kumho Tire interpretation of Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993), the testimony of Mr. Dykes would have been inadmissible because it is speculative and not amenable to scientific verification. See Moore v. Ashland Chemical, Inc.,

(5th Cir. 1998) (en banc). If anyone is an expert in recruiting football talent and alumni relations, Spike Dykes is such a person. The test of admissibility in Rule 702 is a flexible one that must be tailored to the facts of each case. See Kumho Tire v. Carmichael, --- U.S. ---, ---,

(1999) (“Daubert makes clear that the factors it mentions do not constitute a 'definitive checklist or test.'”) (quoting Daubert,

(“Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist.”)).

8 upon which we could find that defendants' actions were

objectively unreasonable. The district court's ruling that all

defendants are entitled to qualified immunity is AFFIRMED.

SANCTIONS AGAINST PLAINTIFFS' COUNSEL

Plaintiffs assert that the district court erred in

sanctioning plaintiffs' counsel (“Simon”) for a letter Simon sent

to potential defendants in connection with this case. Although

the magistrate judge concluded that Simon's behavior did not

merit sanctions, she suggested that he write an amendatory letter

“to explain . . . any ambiguities regarding the intent and tone

of his original letter.” The district court granted the

defendants' motion for sanctions and required Simon to send the

amendatory letter. Simon sent the mandated letter, but

nonetheless appeals the district court's decision. Because we

hold that the district court abused its discretion, we VACATE its

ruling on this issue.

The imposition of sanctions by a district court is reviewed

for abuse of discretion. See Chaves v. M/V Media Star,

(5th Cir. 1995). “A court abuses its discretion when

its ruling is based on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.”

(citing

Cooter & Gell v. Hartmax Corp.,

(1990)).

Although a district court has inherent power to issue

sanctions against attorneys for bad faith conduct in litigation,

see Chambers v. NASCO, Inc.,

(1991), the

threshold for the imposition of such sanctions is high. See

9 Chaves, 47 F.3d at 156. “In order to impose sanctions against an

attorney under its inherent power, a court must make a specific

finding that the attorney acted in 'bad faith.'” Id.

The district court abused its discretion in imposing

sanctions on Simon. Not only did the district court fail to make

a specific finding as to the bad faith of Simon's actions, but

its sanctioning order was issued in the face of the magistrate's

finding that Simon's actions were not “a bad faith attempt to

disrupt or delay these proceedings.” Because a specific finding

as to the bad faith of Simon's actions was not made, and indeed,

one could not be made from this record, we VACATE the district

court's order imposing sanctions on Simon.

“BYSTANDER RECOVERY” CLAIM

Plaintiffs assert that the district court committed

reversible error in dismissing their pendent state law claim

under article 2315.6 of the Louisiana Civil Code for failure to

state a claim upon which relief can be granted.7 We disagree.

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

7 Appellee Caillier asserts that we lack appellate jurisdiction over this claim because plaintiffs' appeal of this ruling was untimely. See FED. R. APP. P. 4(a)(1)(A). We disagree. Plaintiffs' notice of appeal was filed well within the required thirty days of the district court's August 18, 1998 order. That notice of appeal covers the district court's August 18, 1998 rulings, the district court's August 28, 1998 rulings and “all subsidiary rulings occurring during the pendency of this action.” Because the district court's October 31, 1997, 12(b)(6) ruling is not subject to Rule 54(b), it falls within the purview of “subsidiary rulings occurring during the pendency of this action.” Therefore, our jurisdiction is proper.

10 "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." Anderson v. Pasadena Indep. Sch.

Dist.,

(5th Cir. 1999) (quoting Blackburn v.

City of Marshall,

(5th Cir. 1995)).

Article 2315.6 of the Louisiana Civil Code is a “bystander

recovery” statute that allows certain “persons who view an event

causing injury to another person, or who come upon the scene of

an even soon thereafter, [to] recover damages for mental anguish

or emotional distress that they suffer as a result of the other

person's injury.” LA. CIV. CODE ANN. art. 2315.6 (West 1999). We

are conscious of the fact that Louisiana's highest court is the

appropriate place to seek the proper interpretation of this

statute. See Sanchez v. Liggett & Myers, Inc.,

(5th Cir. 1999) (“If the state through its highest court has

spoken clearly in interpreting its law, it is not within the

authority of this Court to reinterpret that law.”) (Parker, J.,

dissenting). The Louisiana Supreme Court recently “[spoke]

clearly in interpreting” this statute.

In Trahan v. McManus,

(La. 1999), rev'g

(La. Ct. App. 1997), the parents of a 36-year-old

patient, Terry Trahan, who died after he was negligently

discharged from the hospital, brought suit for bystander damages

against the doctor who discharged their son. Several hours after

being brought home from the hospital, Terry complained of severe

pain and his condition deteriorated. He died in the presence of

11 his parents approximately seven hours after his discharge from

the hospital.

The Louisiana Supreme Court held that, assuming the doctor's

negligent omission was the “event” that caused Terry Trahan's

injury, it “was not an injury causing-event in which the claimant

was contemporaneously aware that the event caused harm to the

direct victim, as required for recovery of Article 2315.6

damages.” Trahan,

. In reaching this

decision, the Trahan Court adopted the reasoning set forth in

Lejeune v. Rayne Branch Hosp.,

(La. 1990), and

made the following statement: “The requirements of Article

2315.6, when read together, suggest a need for temporal proximity

between the tortious event, the victim's observable harm, and the

plaintiff's mental distress arising from an awareness of the harm

caused by the event.”

.

The facts interpreted in plaintiffs' favor show that neither

Carol nor Kyle actually viewed or “[came] upon the scene” of the

event-causing injury (Kipps's termination), but were merely

“notified” or “informed” of the event after it occurred.8 They

do not fit within the framework of Article 2135.6 or the case law

interpreting it. Therefore, the district court's dismissal of

8 We do not comment on the second prong of Article 2315.6: whether the harm suffered by Kipps was traumatic enough “that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience.” LA. CIV. CODE ANN. art. 2315.6(B) (West 1999). Cf. Irvin v. Foti, No. 99-1526,

, at *5 (E.D. La. July 13, 1999) (“[W]itnessing the arrest of a child, while traumatic is simply not the kind of injury contemplated by Art. 2315.6.”).

12 the plaintiffs' “bystander recovery” claim is AFFIRMED.

CONCLUSION

For the foregoing reasons, we VACATE in part and AFFIRM in

part the decision of the district court.

13 DeMOSS, Circuit Judge, specially concurring:

I concur in the result reached by the majority opinion as to

all issues.

I write separately to express my view that our decision

affirming the district court’s grant of qualified immunity should

be based upon the ground that the Kippses failed to state a cause

of action for the violation of a clearly established

constitutional right, rather than upon the ground that

Schexnayder’s decision to fire Kipps merely because Kipps’ son

decided upon another university was objectively reasonable as a

matter of law. Whatever the factual or legal parameters of the

amorphous “constitutional liberty interest in familial

association” that the majority opinion assumes into existence, I

find no support in the case law for the proposition that such a

right was clearly established when Kipps was fired or even that

such a right is clearly established today. In sum, I agree that

the defendants are entitled to qualified immunity as a matter of

law, but I would affirm on the much stronger ground that the

Kippses failed to state a claim for violation of a clearly

established constitutional right.

I write also to express my dismay that the majority has used

this opportunity to “comment on a key element” of the defendants’

alternative justification defense, notwithstanding the majority’s

disclaimer that such comments are unnecessary to this Court’s

14 disposition and “do not speak” to the district court’s actual

ruling on the justification defense. Given the majority’s

concession that it need not, and indeed does not, reach the

issue, see Majority Opinion at 9 n.6, I would avoid “commenting”

on the law or the facts governing that defense by deleting

footnote 6 in the majority opinion. The majority has taken a

contrary approach, choosing to interject its own and rather

simplistic view of the complex issues raised by the need to

harmonize the Supreme Court’s dispositions in Daubert v. Merrell

Dow Pharmaceuticals, Inc.,

,

(1993),

and Kumho Tire v. Carmichael, __ U.S. __,

(1999). That such an approach is inappropriate is perhaps best

illustrated by the majority’s decision to elevate Coach Dykes (as

a matter of law and presumably for all future cases) to the

status of an expert based upon some perceived change in the law

arising from Kumho. Kumho was not decided until after briefing

was complete in this case, and there is no adversarial briefing

on the import of Kumho. Moreover, the Court’s determination that the defendants are entitled to qualified immunity makes any

“comments” on the effect of Kumho immaterial to the Court’s

decision. In sum, footnote 6 is nothing but gratuitous dicta

which has no place in and forms no part of our decision in this

case.

15