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2011 johnson-v-houston-appellantreply-03282011

2011 johnson-v-houston-appellantreply-03282011

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Date Created:March 28, 2011

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No. 10-20743 THE UNITED STATES COURT APPEALS 
FOR THE FIFTH CIRCUIT 
 
_______ 
 
JOSLYN JOHNSON, 
 
Plaintiff-Appellant, 
 
CITY HOUSTON, al., 
 
Defendants-Appellees. 
 
_______ APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT TEXAS 
_______ 
 
REPLY BRIEF APPELLANT 
_______ 
 
 
 
 
 
 
 
Paul Orfanedes 
Julie Axelrod 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 
(202) 646-5172 
 
Attorneys for Plaintiff-Appellant
TABLE CONTENTS 
 
 
TABLE AUTHORITIES ................................................................................ iii 
INTRODUCTION ..................................................................................................... 
 
ARGUMENT ............................................................................................................. The Dismissal the HPD and Chief Hurtt Irrelevant Whether Sergeant Johnson May Proceed Against 
  the City .................................................................................................. The Citys Argument That Res Judicata Bars Sergeant 
  Johnsons Claims Does Not Withstand Scrutiny .................................. Sergeant Johnson Has Not Waived Her Right  
  Challenge Issue the District Court Never Reached .......................... Sergeant Johnsons Complaint States Viable Claims  
  Against the City ..................................................................................... Sergeant Johnson Has Stated Claims Under U.S.C.  1983....................................................................... First Amendment Right .................................................... Right Inform Federal Officials 
    Possible Violations Federal Law ................................ Rights Under U.S.C.  1373 and 
    1644 ................................................................................ Sergeant Johnson Has Stated Claim Under the  
   Texas Constitution ..................................................................... 
 
 
 
 
              Page 
 
CONCLUSION ........................................................................................................ 
 
CERTIFICATE COMPLIANCE WITH RULE 32(a)  ..................................... 
 
CERTIFICATE SERVICE ................................................................................ 
 
TABLE AUTHORITIES 
Cases              Page 
 
Audler CBC Innovis Inc., 519 F.3d 239  
 (5th Cir. 2008)  ................................................................................................. 
 
Blessing Freestone, 520 U.S. 329 (1997)  .................................................... 7-8,15 
 
Bogy Ford Motor Co., 538 F.3d 352 (5th Cir. 2008)  ............................................ 
 
Charles Grief, 522 F.3d 508 (5th Cir. 2008)  .................................................. 9-13 
 
City Beaumont Bouillion, 896 S.W.2d 143  
 (Tex. 1995)  .................................................................................................... 
 
City Elsa M.A.L., 192 S.W.3d 678 (Tex. App. Corpus Christi [13th Dist.] 2006)  ............................................................. 
 
Collins Morgan Stanley Dean Witter, 224 F.3d 496  
 (5th Cir. 2000)  ................................................................................................. 
 
Corwin Marney, 788 F.2d 1063 (5th Cir. 1986)  ................................................... 
 
Davis Dallas Area Rapid Transit, 383 F.3d 309  
 (5th Cir. 2004)  ................................................................................................. 
 
Davis McKinney, 518 F.3d 304 (5th Cir. 2008)  ................................... 9-10, 12-13 
 
Edwards Habib, 366 F.2d 628 (D.C. Cir. 1965)  ................................................. 
 
Garcetti Ceballos, 547 U.S. 410 (2006)  ...................................................... 8-9,12 
 
Lafreniere Park Foundation Broussard, 221 F.3d 804  
 (5th Cir. 2000)  ................................................................................................. 
 
Nixon City Houston, 511 F.3d 494 (5th Cir. 2007)  ................................... 13-14 
 
Nueces County Ferguson, S.W.3d 205, 218 (Tex. App. Corpus Christi [13th Dist.] 2006)  ........................................................... 
              Page 
 
Olibas Gomez, 481 Supp.2d 721 (W.D. Tex. 2006)  ....................................... 
 
Pickering Board Education, 391 U.S. 563 (1968)  ....................................... 9,11 
 
Roebuck Florida Dept Health Rehabilitative 
 Services, Inc., 502 F.2d 1105 (5th Cir. 1974) ................................................. 
 
Sims Century Kiest Apartments, 567 S.W.2d 526  
 (Tex. App. Dallas [5th Dist.] 1978)  .......................................................... Quarles, 158 U.S. 532 (1895)  ................................................................... 12,14 
 
Twining New Jersey, 211 U.S. (1908)  ........................................................... 
 
U.S. Guest, 383 U.S. 745 (1966)  ......................................................................... 
 
U.S. rel. Riley St. Lukes Episcopal Hosp.,  
 355 F.3d 370 (5th Cir. 2004)  .......................................................................... 
 
Williams Allen, 439 F.2d 1398 (5th Cir. 1971)  ................................................... 
 
Williams Dallas Independent School District,  
 480 F.3d 689 (5th Cir. 2007)  .......................................................................... 
 
Wright Roanoke Redevelopment and Housing Authority,  
 479 U.S. 418 (1987) ...................................................................................... 
 
Yohey Collins, 985 F.2d 222 (5th Cir. 1993)  ........................................................ 
 
 
 
Statutes and Rules U.S.C.  1373 ................................................................................................... 15,17 U.S.C.  1373(a)  ............................................................................................ 15-16 U.S.C.  1644 ................................................................................................... 15,17 
 
              Page U.S.C.  1983 ............................................................................................ 7-8,14,17 
 
F.R.Civ.P. 12(b)(6)  ................................................................................................... 
 
 
 
 
 
 
INTRODUCTION 
 Defendant-Appellee the City Houston (the City) raises three arguments its brief:  (1) that Plaintiff-Appellant Sergeant Joslyn Johnson (Sergeant Johnson) did not challenge the district courts dismissal the Houston Police Department (HPD) and Chief Harold Hurtt his official capacity; (2) that the district court was correct find that Sergeant Johnsons claims against the City were barred res judicata; and (3) that Sergeant Johnson was required argue and assign error grounds for dismissal never reached the district court.  Remarkably, the City gave only perfunctory attention the issue res judicata, which, being the only basis for the district courts decision dismissing Sergeant Johnsons claims case against the City, might expected the focus the Citys argument.    
The Citys attempt refocus this Courts attention away from the district courts actual decision demonstrates that the City recognizes the weakness its own res judicata argument.  The Citys argument that res judicata bars Sergeants claims unpersuasive and relies mischaracterizing the operative facts Sergeant Johnsons claims.  Although Sergeant Johnson submits that this Court should not reach issues upon which the district court did not rule, her Complaint against the City clearly states claims upon which relief can granted under the U.S. Constitution, federal laws, and the Texas Constitution.  
ARGUMENT The Dismissal the HPD and Chief Hurtt Irrelevant  
  Whether Sergeant Johnson May Proceed Against the City. 
 
 The City correctly notes its brief that the HPD and Chief Hurtt have been dismissed from the case and that Sergeant Johnson does not challenge the dismissal the HPD and Chief Hurtt.  (Brief Appellee 5-6).  This should not surprising given that the City essentially, not expressly, argued the district court and this Court that Sergeant Johnsons claims against the HPD and Chief Hurtt and her claims against the City were redundant.  Id.; USCA5 213-14.  Sergeant Johnson clearly does challenge the basis upon which the case against the City Houston was dismissed, however.  Why the City raised the issue all puzzling, obviously plaintiff needs only one defendant have viable claim. The Citys Argument That Res Judicata Bars Sergeant 
  Johnsons Claims Does Not Withstand Scrutiny. her opening brief, Sergeant Johnson demonstrated length why the district courts res judicata finding was erroneous.  The Citys answer brief pays remarkably little attention the issue, which the central, not the only, issue raised this appeal.  Moreover, the Citys argument support res judicata relies fundamentally mistaken notions about the two lawsuits issue: wrongful death action brought the estate Sergeant Johnsons deceased husband, Officer Rodney Johnson, seeking monetary damages (the Wrongful 
Death Action), and the present action Sergeant Johnson, her individual capacity, challenging HPD policy put into effect after her husbands tragic murder and seeking declaratory and injunctive relief (The First Amendment Action). 
 First, the City erroneously asserts that Sergeant Johnson participated the Wrongful Death Action in her individual capacity and asserted her own claims for damages.  Brief Appellee  This simply not true. fact, the district courts ruling the Wrongful Death Action made crystal clear that Sergeant Johnson did not participate the prior action in her individual capacity seek her own award damages. denying the Citys motion dismiss any claims brought Sergeant Johnson her individual capacity behalf all Houston Police Officers, the District Court expressly found that Sergeant Johnson makes such claims.  USCA5 155 and 173 (emphasis added). 
Second, the City erroneously asserts that both the Wrongful Death Action and the First Amendment Action revolve around the circumstances surrounding Officer Johnsons death and the HPD policies which Sergeant Johnson claims prohibit officers from determining persons immigration status apart [sic].  Brief Appellee 10.  According the City, In both cases, Sergeant Johnson attempts challenge the propriety the same HPD procedures.  Id.  Again, this simply not true.  Sergeant Johnson thoroughly debunked these false notions 
her opening brief.  See Brief for Appellant 14-15; see also USCA5 21-22 and 109.  The HPD changed its policy after Officer Johnsons death, and this new policy that Sergeant Johnson challenges.  Id. 
 Finally, the City makes effort whatsoever rebut Sergeant Johnsons showing that the two cases would not have formed convenient trial unit, which touchstone for any finding res judicata.  See, e.g., Lafreniere Park Foundation Broussard, 221 F.3d 804, 810 (5th Cir. 2000); Davis Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004).  The law clear that plaintiff cannot bring action against defendant based the same nucleus operative facts that were issue prior lawsuit between the same parties.  Davis, 383 F.3d 313.  Sergeant Johnson has not done that, and the district courts finding res judicata was erroneous.  The Citys only arguments the contrary misconstrue the operative facts.  Consequently, the district courts decision must reversed, and this case must remanded for further proceeding. Sergeant Johnson Has Not Waived Her Right  
  Challenge Issue the District Court Never Reached. 
 
 Through sleight hand, the City attempts promote the notion that, even the Court finds that Sergeant Johnsons claims are not barred res judicata, the district courts decision ought affirmed because Sergeant Johnson somehow waived her right challenge issue the district court never reached. least four times its brief, the City asserts that Sergeant Johnson waived various 
arguments.  See Brief Appellee and 11.  The City apparently hopes the Court will not notice that one these waivers not like the others.  The first three purported waivers concern issues that Sergeant Johnson elected not contestthe dismissal HPD, the dismissal Chief Hurtt, and both the competency the district court the Wrongful Death Action and the finality the judgment that action.  Each these matters was expressly reached the district court its memorandum opinion and order, and, again, Sergeant Johnson does not contest them. contrast, the Citys fourth purported waiver issue the district court did not reach.  The City claims that Sergeant Johnson waived her right challenge the Citys right dismissal her claims substantive grounds.  Brief Appellee 11. the district court, the City moved dismiss Sergeant Johnsons Complaint for failure state claim under Rule 12(b)(6) the Federal Rules Civil Procedure.  USCA5 42-46. her opposition, Sergeant Johnson demonstrated that the Citys argument was without merit.  Id. USCA5 110-20.  Because the district court found Sergeant Johnsons claims were barred res judicata, however, never reached the Citys Rule 12(b)(6) argument. expressly stated its memorandum opinion and order:  Because the Court grants the Citys motion dismiss res judicata grounds, need not address the Citys additional grounds for dismissal they are rendered moot.  Id. 247.    
Obviously, Sergeant Johnson can only appeal rulings that the district court actually made.  This simple logic.  How could appellant ever assign error ruling that was never made? her opening brief this Court, Sergeant Johnson demonstrated that the district courts finding res judicata was erroneous.  That all she was required do.  She was not required demonstrate that other arguments asserted the City its motion dismiss, but never reached the district court, were erroneous well.  The Citys waiver argument without merit. 
Nor the authorities cited the City support the novel proposition that, not briefing argument appellate court, appellant waives any right challenge the argument even though the argument not part the ruling appeal.  These authorities, Audler CBC Innovis Inc., 519 F.3d 239 (5th Cir. 2008) and Yohey Collins, 985 F.2d 222 (5th Cir. 1993), merely stand for the generic proposition that, appellant wishes assign error decision district court, the appellant must brief the alleged error. contrast, cases which appellate courts declined rule issues not considered district courts are legion.  See, e.g., Bogy Ford Motor Co., 538 F.3d 352, 355 (5th Cir. 2008); U.S. rel. Riley St. Lukes Episcopal Hosp., 355 F.3d 370, 380 (5th Cir. 2004);  Corwin Marney, 788 F.2d 1063, 1069 (5th Cir. 1986); Roebuck Florida Dept Health Rehabilitative Services, Inc., 502 F.2d 1105, 1106 (5th Cir. 1974).  
Likewise, this Court should decline consider the first instance arguments not decided the district court.  The City certainly provides reason why this Court should deviate from ordinary appellate practice.  If, Sergeant Johnson has argued, the district courts finding res judicata was error, then this case should remanded the trial court for further proceedings. Sergeant Johnsons Complaint States Viable Claims Against 
  the City. the unlikely event that the Court elects consider arguments not reached the district court instead the more typical practice remanding for further proceedings, the Court should find that Sergeant Johnsons Complaint clearly states one more viable claims upon which relief can granted. reviewing motion dismiss for failure state claim upon which relief can granted, court must accept the plaintiffs allegations true, must view them the light most favorable the plaintiff, and must draw all inferences favor the plaintiff.  Collins Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).  Sergeant Johnsons Complaint clearly states claims under federal law and under the Texas Constitution upon which relief can granted. Sergeant Johnson Has Stated Claims Under U.S.C.  1983. 
 
 Section 1983 imposes liability anyone who, under color state law, deprives person any rights, privileges, and immunities secured the 
Constitution and the laws the United States.  Blessing Freestone, 520 U.S. 329, 340 (1997). order seek redress under section 1983, plaintiff must assert not merely the violation federal law, but the violation federal right.  Id.  Sergeant Johnson has asserted violations several federal rights for purposes her section 1983 claim.  USCA5 26-27 and 110-18. First Amendment Right. 
 Sergeant Johnson alleges that the City violated her right under the First Amendment the U.S. Constitution restricting her ability share information with federal immigration officials about possible violations federal law.  See USCA5 26-27 and 110-15.  According the City, the restrictions issue not violate the First Amendment because speech regarding the criminal alien immigrant status person arrested detained HPD officer speech related the officers official duties.  Brief Appellee 13. Garcetti Ceballos, 547 U.S. 410, 417 (2006), the U.S. Supreme Court made clear that public employees not surrender all their First Amendment rights reason their employment.  Id.  Rather, the First Amendment protects public employees right, certain circumstances, speak citizen addressing matters public concern.  Id. public employees speech protected the First Amendment when the interest the employee citizen addressing matters public concern outweigh the interests the government employer promoting 
the efficiency the service performs through its employees.  Charles Grief, 522 F.3d 508, 512 (5th Cir. 2008).  This analysis sometimes referred Pickering balancing test.  Id. 515 (citing Pickering Board Education, 391 U.S. 563, 568 (1968)). Garcetti, deputy district attorney reported inaccuracies search warrant his supervisor and recommended the office refrain from prosecuting related criminal case.  The deputy district attorney alleged that suffered retaliation for this inter-office speech.  The Court Garcetti concluded that the deputy district attorneys speech was not protected the First Amendment because was made pursuant his official duties, specifically, the fulfillment his responsibility advise his supervisor how best proceed with pending case.  Id. 513.  However, the Court Garcetti did not explicate what means speak pursuant ones official duties.  Williams Dallas Independent School District, 480 F.3d 689, 692 (5th Cir. 2007).  That task has been left the appellate courts. Davis McKinney, 518 F.3d 304, 312 (5th Cir. 2008), this Court noted that, [b]ecause Garcetti recent decision, lower courts have had limited opportunity interpret it. Davis, the Court declared that, [c]ases from other circuits are consistent holding that when public employee raises complaints concerns the chain command his workplace about his job duties, that 
speech undertaken the course performing his job.  Id. 313.  If, however, public employee takes his job concerns persons outside the work place then those external communications are ordinarily not made employee, but citizen.  Id. Davis, University Texas computer systems administrator reported possible criminal behavior and racial discrimination, discovered during the course carrying out her duties and responsibilities, the Federal Bureau Investigation (FBI) and U.S. Equal Employment Opportunity Commission (EEOC).  The Court found that the administrators communication with the FBI and EEOC, although clearly related the plaintiffs employment, were protected, noting that public employees external communications are ordinarily not made employee, but citizen.  Id. 313-314, 316. 
 Similarly, Charles Grief, 522 508, 512 (5th Cir. 2008), employee the Texas Lottery Commission provided information about racial discrimination and retaliation, misuse funds, and other alleged misconduct the Commissions management members the Texas Legislature.  Charles, 522 F.3d 510, 514.  The Court noted:  Charles voiced his complaints externally, Texas legislators who had oversight authority over the Commission, not internally, supervisors.  Id. 514 (emphasis original).  His decision ignore the normal chain command identifying problems with the Commissions operations significant distinction.  Id. Davis, the Court concluded that these external 
communications were not left unprotected Garcettis genre non-protected speech.  Id. 
 The City does not argue that the speech issue communications with federal immigration officials about possible violations federal law not speech about matter public concern.  Nor does the City argue that the results the Pickering balancing test weigh clearly its favor that Sergeant Johnson cannot state claim for relief matter law.  Instead, the City argues that the speech issue not protected because part Sergeant Johnsons official duties and responsibilities.  See Brief Appellee  The City simply wrong.   
 The speech issue here clearly not required Sergeant Johnson the HPD part Sergeant Johnsons job. the contrary, the City and HPD want prevent Sergeant Johnson from communicating with federal immigration officials about possible violations federal law she might discover.  Sergeant Johnson does not claim such speech unrelated her job.  Nonetheless, clearly constitutes protected speech made citizen, not employee. least three factors are important this regard.   
 First, irrelevant that the speech issue might arise from special knowledge Sergeant Johnson obtains through her employment.  The Court Charles rejected this argument: to hold that any employees speech not 
protected merely because concerns facts that happened learn while work would severely undercut First Amendment rights.  Charles, 522 F.3d 513. 
 Second, and unlike Garcetti, but like Davis and Charles, the speech issue not intra-office speech even speech within Sergeant Johnsons chain command.  Nor even made within the HPD the City.  Rather, external speech. particular speech federal officials.    
 Third, well established that citizens have the right inform federal officials possible violations federal law.  See, e.g. Quarles, 158 U.S. 532, 535-36 (1895); U.S. Guest, 383 U.S. 745, 775, 779 (1966) (Harlan, concurring part and dissenting part) (Brennan, J., concurring part and dissenting part); Edwards Habib, 366 F.2d 628, 629 (D.C. Cir. 1965) (It not seriously questioned that every citizen has the right, not the duty, informing his government violation law, and  court equity, proper showing, may enjoin any interference with that right.) Sims Century Kiest Apartments, 567 S.W.2d 526, 529-30 (Tex. App. Dallas [5th Dist.] 1978).  Along with the right petition Congress and the right vote federal elections, the right inform federal officials possible violations federal law among the set rights and privileges enjoyed citizens the United States, distinguished from those enjoyed citizens any particular state.  Twining New Jersey, 211 U.S. 78, (1908).  Consequently, not only the speech issue 
external Sergeant Johnsons chain command in fact, external her employer, the City but also completely consistent with the independent, well established right U.S. citizens inform federal officials possible violations federal law. also not materially different from Davis, which the university administrator was found have engaged protected speech when she reported possible violations federal law the FBI and the EEOC.  Similarly, Sergeant Johnson seeks report possible violations federal immigration laws federal immigration officials.  Her speech not left unprotected Garcettis genre non-protected speech.  Charles, 522 F.2d 514.    
 The City cites Nixon City Houston, 511 F.3d 494 (5th Cir. 2007) arguing the contrary.  Nixon clearly inapposite, however.  Nixon insubordination case, not free speech case. Nixon, on-duty, uniformed HPD patrol officer who had history making unauthorized statements the media was fired after going the scene accident following high speed chase and giving interviews reporters: 
Nixon posed official HPD spokesman the scene accident and criticized HPDs handling the high-speed pursuit issue. Furthermore [follow-up media appearances] Nixon stated that knowingly disobeyed HPD pursuit policy prior occasion and felt comfortable violating other direct orders because has civil service protection.  Such statements and conduct smack insubordination, and entirely reasonable for the HPD predict that such insubordination and likely acts future insubordination would harm HPDs ability maintain discipline and order the department Furthermore HPD could reasonably predict that officer criticizing 
HPD policy while masking official spokesperson the scene accident and discussing his past violations HPD policy and future willingness violate such policies would bring the mission HPD and the professionalism its officers into disrepute. 
 
Nixon, 511 499.  Unlike Nixon, this case not insubordination case.  Moreover, the officer Nixon was not sharing information about possible violations federal law with federal authorities, which distinct right U.S. citizenship its own right. Quarles, 158 U.S. 535-36.  Because the prohibited speech issue protected speech, Sergeant Johnson has stated claim for violation her First Amendment rights.  Right Inform Federal Officials 
     Possible Violations Federal Law. 
 
 Second, and related to, but independent Sergeant Johnsons claim for violation her First Amendment right freedom expression, the already-noted right U.S. citizens inform federal officials possible violations federal law.  See, e.g., Quarles, 158 U.S. 535-36.  Section 1983 has been used other instances remedy violation this longstanding right. Williams Allen, 439 F.2d 1398 (5th Cir. 1971), this Court found that police officer could bring action under section 1983 remedy alleged violation his right inform federal authorities possible violation federal law after was allegedly terminated retaliation for having reported acceptance lottery payoffs police officers the IRS.  Clearly, Sergeant Johnsons original petition, 
which referenced the deprivation her rights secured the Constitution and the laws the United States, states claim under section 1983 for violation this right well. Rights Under U.S.C.  1373 
    and 1644.  
 
 Third, Sergeant Johnson has stated claim under section 1983 for violation her rights under U.S.C.  1373 and its companion statute, U.S.C.  1644.  The U.S. Supreme Court has traditionally looked three factors when determining whether particular statutory provision gives rise federal right.  Blessing, 520 U.S. 340.  First, Congress must have intended that the provision question benefit the plaintiff.  Id. (citing Wright Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 430 (1987)).  Second, the plaintiff must demonstrate that the right assertedly protected the statute not vague and amorphous that its enforcement would strain judicial competence.  Id. 340-41 (quoting Wright, 479 U.S. 431-32).  Third, the statute must unambiguously impose binding obligation the States.  Id.  In other words, the provision giving rise the asserted right must couched mandatory rather than precatory terms.  Id. appears question first impression whether the federal statutes issue give rise federal right. reasonable examination the statutes, especially section 1373(a), demonstrates that they confirm, not create, federal 
right the part local government officials such Sergeant Johnson share information with federal immigration officials without interference from their employers.  The most obvious example section 1373(a), which expressly states that local government entities may not prohibit any way restrict government official from sending receiving from the Immigration and Naturalization Service information regarding the citizenship immigration status, lawful unlawful, any individual. U.S.C.  1373(a).  The language both statutes directed squarely government officials ability share information.  These provisionsenacted Congress response policies like the HPDs policy that were proliferating across the countrybenefit local government officials like Sergeant Johnson because they reinforce and amplify these officials constitutional rights freedom expression and inform federal officials possible violations federal law.  They are particularly beneficial local law enforcement officials, such Sergeant Johnson, who have sworn oath preserve, protect, and defend the Constitution and laws the United States and are charged law with detecting and preventing crimes and arresting violators the law. 
 Second, there nothing vague amorphous about the statutes the right they create. cannot said that their enforcement would strain judicial competence.  Courts clearly are competent determine whether prohibitions 
restrictions are being placed state local government officials communications with federal immigration officials and declare any such prohibitions restrictions unlawful.  
 Third, the statutes clearly impose direct and binding obligation state and local governments.  Their language could not clearer. restrictions prohibitions the sharing information are permitted.  There nothing precatory about them. difficult conceive how Congress could have expressed itself any clearer when used the words a Federal, State, local government entity official may not prohibit, restrict any government entity official from sending receiving from, the Immigration and Naturalization Service information regarding the citizenship immigration status, lawful unlawful, any individual.  Congress has unmistakably ordained that state and local governments may not restrict their law enforcement officers communication with federal immigration officials regarding persons immigration status.  
 Whether characterized violation her right freedom expression under the First Amendment the U.S. Constitution, her right citizen the United States inform federal officials possible violations federal law, her rights under U.S.C.  1373 and 1644all which are mutually reinforcing this instanceSergeant Johnson has plainly stated claim under U.S.C.  1983. Sergeant Johnson Has Stated Claim Under the 
   Texas Constitution. 
 
 The Citys argument that Texas common law does not provide cause action for violations the Texas Constitution without merit.  Brief Appellee 12.  Although the City correct that there right action for damages arising under the free-speech provision the Texas constitution, Sergeant Johnson does not seek monetary damages.  She seeks declaratory and injunctive relief. well established that the Texas Constitution provides for equitable relief for violations its provisions.  Olibas Gomez, 481 Supp.2d 721, 726 (W.D. Tex. 2006); City Beaumont Bouillion, 896 S.W.2d 143, 149 (Tex. 1995); Nueces County Ferguson, S.W.3d 205, 218 (Tex. App. Corpus Christi [13th Dist.] 2006); City Elsa M.A.L., 192 S.W.3d 678 (Tex. App. Corpus Christi [13th Dist.] 2006).  When Sergeant Johnsons claims are analyzed based how she pled them rather than the City miscontrues them, there doubt that Sergeant Johnson has stated claim under the Texas Constitution upon which relief can granted.  
CONCLUSION 
 For the reasons set forth Sergeant Johnsons Opening Brief and the additional reasons set forth above, Sergeant Johnson respectfully requests that this Court reverse the district courts decision granting the Citys motion dismiss the basis res judicata and remand this matter for further proceedings. 
Dated:  March 28, 2011    Respectfully submitted, 
 
       JUDICIAL WATCH, INC. 
 
       /s/ Julie Axelrod 
       
      Paul Orfanedes 
       Julie Axelrod 
       435 Third Street, SW, 
       Suite 800 
       Washington,  20024 
       (202) 646-5172 
 
       Attorneys for Plaintiff-Appellant 
  
CERTIFICATE COMPLIANCE WITH RULE 32(a) 
 
Certificate Compliance with Type-Volume Limitation,  
Typeface Requirements, and Type Style Requirements This brief complies with the type-volume limitation Fed. App.    P.32(a)(7)(B) because: 
 
   this brief contains 4,403 words, excluding the parts  
   the brief exempted Fed. App. 32(a)(7)(B)(iii). This brief complies with the typeface requirements Fed. App.    32(a)(5) and the type style requirements Fed. App. 32(a)(6)  
  because: 
 
   this brief has been prepared proportionally spaced  
   typeface using Times New Roman point font  
   produced Microsoft Word 2010. 
 
       /s/  Julie Axelrod 
         
       Julie Axelrod 
       JUDICIAL WATCH, INC. 
       435 Third Street, S.W., Suite 800 
       Washington,  20024 
       (202) 646-5172 
 
       Attorney for Plaintiff-Appellant 
 
Dated:  March 28, 2011 
 
  
CERTIFICATE SERVICE hereby certify that March 28, 2011, true and correct copy the foregoing REPLY BRIEF APPELLANT has been served electronically via this Courts ECF system the following: 
 
     Andrea Chan 
     City Houston       Legal Department      900 Bagby Street      Houston, 77002-0000 
 
        /s/  Julie Axelrod