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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-40948
Summary Calendar

Ofelio Muniz, Jr.,
Plaintiff-Appellant,
versus
City of Harlingen; Jim Schoepner; Robert S. Archer; Joe Vasquez,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas

April 19, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Plaintiff Muniz brought this § 1983 action alleging that
defendants violated his right to due process of the law by making
false and defamatory statements about him when asked for references
by a prospective employer. The district court dismissed his
complaint under Rule 12(b)(6) for failure to state a claim. The
district court reasoned that, to overcome the qualified immunity of
the defendants, Muniz would first have to show the deprivation of
a clearly established constitutional right. Since there is no
federal constitutionally protected interest in future employment,
the district court reasoned, Muniz had made no such showing.

We agree with the district court, and write only to clarify
the disposition of one of Muniz's arguments on appeal. Muniz urges
that we apply Phillips v. Vandygriff.1 In that case, the plaintiff
showed that, by industry custom, all banks consulted Commissioner
Vandygriff before hiring people to managerial positions.
Accordingly, the court held, Vandygriff's approval constituted a de
facto license, without which no one could manage a bank in the
State of Texas. That license could not be arbitrarily denied
without due process of law.
This case is critically different. Muniz does not allege that
security agencies generally apply to these defendants to seek their
approval before hiring a new security guard. The only reason these
defendants' input was sought in this case at all is that Muniz
listed the Department as his former employer. We decline Muniz's
invitation to expand Phillips to reach such situations. The
situation in which a prior employer's reference is necessary only
for a former employee is exactly the situation covered by the
general rule: one has no constitutionally protected interest in
future employment. De facto licensing only arises where the
defendant holds some form of gatekeeping role generally not
where the defendant's gatekeeping function is specific to the
plaintiff merely because the plaintiff used to work for the
defendant.
1 711 F.2d 1217 (5th Cir. 1983).
2