Case: 23-40478 Document: 114-1 Page: 1 Date Filed: 08/19/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 19, 2024
No. 23-40478
____________ Lyle W. Cayce
Clerk
Christine Reule; Harriet Nicholson; Rebecca
Alexander Foster; Jimmy Lee Menifee; Tony Lamar
Vann; Honorable Madeleine Connor,
Plaintiffs—Appellants,
versus
Honorable Reeve Jackson; Penny Clarkston; Megan
LaVoie,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:22-CV-367
______________________________
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Irma Carrillo Ramirez, Circuit Judge:
Appellants are a group of individuals who have been declared
vexatious litigants under a Texas statute. Their challenge to the
constitutionality of that statute, which they asserted in a lawsuit against a
state court judge, a state court clerk, and a state official responsible for
publishing the online list of individuals declared vexatious litigants, was
dismissed for lack of jurisdiction. We AFFIRM.
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I
A
Chapter 11 of the Texas Civil Practice & Remedies Code (“Chapter
11”) sets out a process by which Texas courts can restrict vexatious pro se
litigants’ access to state courts upon a motion by the opposing party. Tex.
Civ. Prac. & Rem. Code § 11.051. Section 11.054 sets out the criteria
for declaring a plaintiff a vexatious litigant. Id. § 11.054. Once a litigant has
been declared vexatious, the court may enter a prefiling order precluding that
litigant from filing future suits pro se without first obtaining permission from
a local administrative judge (“LAJ”). Id. § 11.101(a). “A person who
disobeys [this prefiling order] is subject to contempt of court.” Id.
§ 11.101(b). A prefiling order is appealable, and that appeal may be taken
without permission from an LAJ. Id. §§ 11.101(c), 11.103(d). Section 11.102
sets out the process by which a vexatious litigant may obtain permission from
the LAJ to file a new suit, including the standard the LAJ must apply. Id.
§ 11.102.
State court clerks must reject any filing submitted by a vexatious
litigant unless that litigant has first obtained permission from an LAJ. Id.
§ 11.103(a). If a clerk mistakenly dockets a filing from a vexatious litigant, any
party may file a notice pointing out the mistake; the clerk must then notify
the court, and “[o]n receiving notice from the clerk, the court shall
immediately stay the litigation and shall dismiss the litigation” unless the
litigant obtains retroactive permission from the LAJ. Id. § 11.1035. Finally,
clerks must notify the Office of Court Administration of the Texas Judicial
System (“OCA”) when a court enters a prefiling order. Id. § 11.104(a). OCA
is required to maintain a list of litigants who are subject to a prefiling order
and post that list on its website. Id. § 11.104(b). And OCA is prohibited from
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removing an individual’s name from the list without a court order. Id.
§ 11.104(c).
B
Appellants are a group of individuals who have been declared
vexatious litigants and are subject to a prefiling order. As such, they must
seek permission from the local LAJ to file lawsuits pro se.
Lead Appellant Christine Reule, a resident of Smith County, was
declared a vexatious litigant and has been subject to a prefiling order since
2019. Appellants allege that Reule needs to file a new lawsuit pro se because
her neighbor—who purportedly knew that Reule was on the vexatious
litigants list and therefore could not sue him—shot and killed her dog. They
claim Chapter 11 has “severely and permanently impaired” Reule’s right to
petition and access courts. Their complaint contains similar allegations
pertaining to each of the Appellants. Other than Reule, however, none of the
Appellants alleges that he or she has an immediate need to file a lawsuit that
is inhibited by operation of Chapter 11.
Appellants filed this suit challenging the constitutionality of Chapter
11—specifically, sections 11.001(2), 11.052, 11.053, 11.054, 11.055, 11.056,
11.101, 11.102, 11.103, and 11.104—both on its face and as applied to them.
They averred that Chapter 11 permanently deprives them of their First
Amendment right to petition, and therefore operates as an unlawful prior
restraint; it is overbroad, vague, and arbitrary and capricious and cannot
satisfy any level of judicial scrutiny; it flouts due process and equal
protection; it operates independently of applicable rules of evidence; it
abridges a plaintiff’s right to appeal a decision; and it runs counter to federal
judicial principles regarding vexatious litigants. They sought a declaration
that Chapter 11 is unconstitutional; certification of two defendant classes
consisting of all Texas state court clerks and all LAJs; an injunction
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prohibiting one of the Appellees and all members of the two defendant classes
from enforcing Chapter 11; nominal damages; and costs and attorney’s fees.
Appellants sue Judge Austin Reeve Jackson, 1 Penny Clarkston, and
Megan LaVoie. Appellants sue Judge Jackson, the LAJ for Smith County, 2 in
his official capacity and as representative of a putative class of defendants
defined as all “Texas LAJs or others with similar duties.” Appellants clarify
that Judge Jackson “is not sued in his judicial capacity,” but instead “in his
official and administrative capacities in the performance of the ministerial
task of deciding whether to permit a ‘vexatious litigant’s’ pro se filing.” They
allege that Judge Jackson “enforces Chapter 11 by granting or denying
permission for a ‘vexatious litigant’ to file a pro se suit or appeal.”
Appellants sue Clarkston, the District Clerk for Smith County, in her
official capacity and as representative of a putative class of defendants
defined as all court clerks in Texas. They allege that Clarkston enforces
Chapter 11 because “she accepts civil cases for filing and issues citations for
service of process” and “[h]er role in enforcing and executing Chapter 11 is
set forth in the statute.” Appellants maintain that “[i]f Defendant Clarkston
did not perform this duty, the statute would be of no effect.”
Finally, Appellants sue LaVoie, the Administrative Director for OCA,
in her official capacity. They claim that she “enforces and executes Chapter
11 by creating, updating, and disseminating the list of ‘vexatious litigants.’”
_____________________
1
Appellants originally named as a defendant Judge Jack Skeen, Jr. Judge Jackson
has since replaced Judge Skeen as the LAJ for Smith County. For clarity, we refer to them
collectively as “Judge Jackson.”
2
Each county has one LAJ. Tex. Gov’t Code § 74.091(a). In a county with
only one statutory county court, the judge of that court serves as the LAJ, id. § 74.091(c);
in a county with multiple statutory county courts, the judges of those courts elect the LAJ
from their ranks to serve for a two-year term, id. § 74.091(b).
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According to Appellants, “if [LaVoie] did not create and update the list, and
make the list available to the public on OCA’s website, including to clerks,
judges, and potential defendants, Chapter 11 would be of no effect.”
Appellees moved to dismiss the complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). They argued, in relevant part, that the
suit should be dismissed because no justiciable case or controversy existed
and Appellants lacked standing. Following a hearing, the district court
dismissed under Rule 12(b)(1). Although it “assume[d] that [Appellants]
alleged an injury[,]” and Appellees “d[id] not dispute that [Appellants] have
identified a cognizable injury for Article III purposes[,]” the court concluded
that Appellants did not have standing to bring this suit because they did not
satisfy the two remaining elements of Article III standing. Additionally, the
court held that it lacked subject matter jurisdiction over the claims against
Judge Jackson because they did not give rise to a case or controversy within
the meaning of Article III. Accordingly, the court dismissed all claims
without prejudice and denied as moot Appellants’ motion for class
certification.
Appellants moved to alter the judgment. The court denied that
motion. This appeal followed.
II
We review a district court’s grant of a 12(b)(1) motion to dismiss de
novo, “applying the same standard used by the district court.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hebert v. United States,
53 F.3d 720, 722 (5th Cir. 1995)). Appellants bear the burden of proving, by
a preponderance of the evidence, that the court has subject matter
jurisdiction. Ballew v. Cont’l Airlines, Inc.,
668 F.3d 777, 781 (5th Cir. 2012).
The issue of subject matter jurisdiction cannot be waived, and federal courts
“are duty-bound to examine the basis of subject matter jurisdiction” at all
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stages in the proceedings and dismiss if jurisdiction is lacking. See Colvin v.
LeBlanc, 2 F.4th 494, 498 (5th Cir. 2021); Carver v. Atwood,
18 F.4th 494,
497 (5th Cir. 2021).
III
Appellants challenge the district court’s conclusion that there is no
case or controversy between them and Judge Jackson.
Article III of the Constitution “limits the jurisdiction of federal courts
to ‘Cases’ and ‘Controversies[.]’” Lujan v. Defs. of Wildlife, 504 U.S. 555,
559 (1992). In Whole Woman’s Health v. Jackson, the Supreme Court noted
that state court judges “exist to resolve controversies about a law’s meaning
or its conformance to the Federal and State constitutions, not to wage battle
as contestants in the parties’ litigation.”
595 U.S. 30, 40 (2021). Accordingly,
because judges are not sufficiently adverse to parties like Appellants, “‘no
case or controversy’ exists ‘between a judge who adjudicates claims under a
statute and a litigant who attacks the constitutionality of the statute.’” Id.
(quoting Pulliam v. Allen,
466 U.S. 522, 538 n.18 (1984)).
We have identified an important principle that clarifies this rule:
“[t]he requirement of a justiciable controversy is not satisfied where a judge
acts in his adjudicatory capacity.” Bauer v. Texas, 341 F.3d 352, 359 (5th Cir.
2003) (emphasis added) (citing Mendez v. Heller,
530 F.2d 457, 458 (2d Cir.
1976)). In contrast, if a judge acts as the enforcer or administrator of a
challenged statute, a case or controversy may exist. See Lindke v. Tomlinson,
31 F.4th 487, 493 (6th Cir. 2022) (“If [the state judge] acted as an enforcer
or administrator of the statute, he may be a proper defendant[.]”); see also
Bauer, 341 F.3d at 359–60 (distinguishing a Supreme Court case holding that
a § 1983 action against a state judge was proper because the judge “acted in
an enforcement, rather than an adjudicatory capacity”).
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Accordingly, to determine whether a case or controversy exists, courts
look to the role the judge plays in the relevant statutory scheme. See Machetta
v. Moren, 726 F. App’x 219, 220 (5th Cir. 2018) (per curiam) (citing Bauer,
341 F.3d at 359). If the role is strictly adjudicatory, then no case or
controversy exists.
Id. Relevant considerations include whether the judge
initiated the proceedings that the plaintiff is challenging or was “a cause of
the statute being enacted” and whether the challenged statutory scheme
compels or allows for traditional judicial safeguards such as notice and a
hearing. See id.; Bauer,
341 F.3d at 360, 361. Judges are not proper parties to
a suit challenging a state law if, in resolving disputes under the challenged
statute, they “act as they would in any other case” in that “they sit as
adjudicators, finding facts and determining law in a neutral and impartial
judicial fashion.” In re Justices of Sup. Ct. of P.R.,
695 F.2d 17, 21 (1st Cir.
1982).
Here, Judge Jackson was acting in his adjudicatory capacity, rather
than as enforcer or administrator of Chapter 11. The only duty that Judge
Jackson and other LAJs are compelled to discharge under Chapter 11 is to
evaluate vexatious litigants’ requests for permission to file a new lawsuit. See
Tex. Civ. Prac. & Rem. Code § 11.102. The statute instructs them to
rule on the motions by “mak[ing] a determination on the request with or
without a hearing[,]” and if a hearing is necessary, “the judge may require
that the vexatious litigant . . . provide notice of the hearing to all defendants
named in the proposed litigation.” Id. § 11.102(c). The statute sets out
criteria for determining whether permission should be granted, too. Id.
§ 11.102(d). And although the LAJ’s decision cannot be directly appealed,
“the litigant may apply for a writ of mandamus” to obtain review of the LAJ’s
ruling. Id. § 11.102(f). In these respects, the functions compelled by Chapter
11 are “function[s] normally performed by a judge.” Stump v. Sparkman, 435
U.S. 349, 362 (1978).
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Appellants emphasize, however, that they intended to sue Judge
Jackson in his administrative capacity, challenging only “the performance of
the ministerial task of deciding whether to permit a ‘vexatious litigant’s’ pro
se filing.” But there is nothing ministerial or administrative about that duty:
it is precisely the type of adjudicatory function judges perform every day, and
Appellants cannot escape the rule articulated in Whole Woman’s Health by
labeling an adjudicatory process as an administrative one.
There is no Article III case or controversy between Appellants and
Judge Jackson. 3 We therefore affirm the dismissal of the claims against him.
IV
Appellants argue that the district court erred in ruling that they lacked
standing to sue Appellees.
As noted, federal courts have the authority to resolve only live cases
or controversies under Article III of the Constitution. Lujan, 504 U.S. at 559.
One of the “landmarks” identifying those cases and controversies which are
susceptible to judicial determination is standing.
Id. at 560. “[T]he
irreducible constitutional minimum of standing contains three elements.”
Id.
They are:
(1) that the plaintiff [has] suffered an “injury in fact”—an
invasion of a judicially cognizable interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) that there be a causal connection between
the injury and the conduct complained of—the injury must be
fairly traceable to the challenged action of the defendant, and
_____________________
3
Appellants contend that this principle does not apply where a plaintiff seeks
prospective, rather than retrospective, relief. This argument appears to be based on a
conflation of the lack of an Article III case or controversy on the one hand and the
availability of judicial immunity, which we do not address, on the other.
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not the result of the independent action of some third party not
before the court; and (3) that it be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Bennett v. Spear, 520 U.S. 154, 167 (1997) (citing Lujan, 504 U.S. at 560–61).
The party invoking federal jurisdiction bears the burden of proving
that standing exists. Lujan, 504 U.S. at 561 (citing FW/PBS, Inc. v. City of
Dallas,
493 U.S. 215, 231 (1990)). “[S]tanding is not dispensed in gross.”
Davis v. Fed. Election Comm’n,
554 U.S. 724, 734 (2008) (quoting Lewis v.
Casey,
518 U.S. 343, 358 n.6 (1996)). Instead, “a plaintiff must demonstrate
standing for each claim he seeks to press and for each form of relief that is
sought.” Town of Chester v. Laroe Ests., Inc.,
581 U.S. 433, 439 (2017).
Here, the district court assumed, for purposes of resolving the motion
to dismiss, that Appellants had satisfied the first element of standing, factual
injury. It found that Appellants had not satisfied the second and third
elements: traceability and redressability. Because we affirm the district
court’s conclusion as to traceability and redressability, we do not address
whether Appellants have demonstrated factual injury.
A
To satisfy the traceability element of standing, a plaintiff must
establish that there is “a causal connection between the injury and the
conduct complained of—the injury must be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some
third party not before the court[.]” Bennett, 520 U.S. at 167. Standing exists
where the purported injury is connected to allegedly unlawful government
conduct. See Duarte ex rel. Duarte v. City of Lewisville,
759 F.3d 514, 520 (5th
Cir. 2014) (citing Allen v. Wright,
468 U.S. 737, 752 (1984)). The defendant’s
conduct does not need to be “the very last step in the chain of causation.”
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Bennett, 520 U.S. at 169. And proximate cause need not be shown. Inclusive
Cmtys. Project, Inc. v. Dep’t of Treas.,
946 F.3d 649, 655 (5th Cir. 2019).
“[W]here a causal relation between injury and challenged action
depends upon the decision of an independent third party . . ., ‘standing is not
precluded, but it is ordinarily substantially more difficult to establish[.]’”
California v. Texas, 593 U.S. 659, 675 (2021) (internal citations omitted).
Indeed, it is well established that standing cannot exist where the injury
“depends on the unfettered choices made by independent actors not before
the court and whose exercise of broad and legitimate discretion the courts
cannot presume either to control or to predict[.]” Lujan,
504 U.S. at 562
(quoting ASARCO Inc. v. Kadish,
490 U.S. 605, 615 (1989) (opinion of
Kennedy, J.)). Nevertheless, the causation element can be satisfied where
“the defendant’s actions produce a ‘determinative or coercive effect upon
the action of someone else,’ resulting in injury.” Inclusive Cmtys.,
946 F.3d
at 655 (quoting Bennett,
520 U.S. at 169).
Here, Appellants do not satisfy this causation element for several
reasons. First, if Appellees all ceased discharging their duties under Chapter
11, nothing about Appellants’ situation would change. Even if all LAJs across
the state refused to evaluate and adjudicate vexatious litigants’ requests for
permission to file new suits, all clerks of court across the state simply ignored
their duties under Chapter 11 and docketed those suits, and LaVoie on behalf
of OCA took down the webpage publishing the list of vexatious litigants,
Appellants would still not get the unfettered access to state courts they seek.
Under Chapter 11, they could still face contempt if they filed a new suit, and
their suits could still be dismissed. Accordingly, Appellants’ injury is not
fairly traceable to Appellees’ conduct. 4 Chapter 11 does have an “immediate
_____________________
4
This conclusion could also be framed as an issue of redressability, which is
discussed below. “The second and third standing requirements—causation and
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coercive effect” on Appellants, but Appellants confuse that effect “with any
coercive effect that might be applied by the defendants[.]” Okpalobi v. Foster,
244 F.3d 405, 426 (5th Cir. 2001) (en banc) (emphasis in original). That
confusion is fatal to their causation arguments.
Additionally, the individuals who arguably are responsible for causing
Appellants’ complained-of injury are the judges who entered the prefiling
orders against Appellants. The state court judges who declared Appellants
vexatious did so based on the discretion afforded them under Chapter 11. See,
e.g., Tex. Civ. Prac. & Rem. Code § 11.054 (“A court may find a
plaintiff a vexatious litigant if the defendant shows” that the plaintiff satisfies
the two criteria set out in the statute. (emphasis added)). To the extent
Appellants were injured, therefore, they were injured by the “unfettered
choices made by independent actors not before the court” based on those
actors’ “broad and legitimate discretion[.]” Lujan, 504 U.S. at 562.
Appellants apparently contend that these deficiencies are rectified by
the fact that they seek a declaratory judgment that Chapter 11 is
unconstitutional. They suggest that, because prevailing in this litigation will
lead to such a declaration, no one will be able to enforce Chapter 11, and
therefore any injury caused by its operation will be remedied. But the type of
remedy sought cannot relieve Appellants of their obligation to establish that
they have standing to seek any remedy at all. See Skelly Oil Co. v. Phillips
_____________________
redressability—are often ‘flip sides of the same coin.’ . . . If a defendant’s action causes an
injury, enjoining the action or awarding damages for the action will typically redress that
injury.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 380–81 (2024) (quoting Sprint
Commc’ns Co., L.P. v. APCC Servs., Inc.,
554 U.S. 269, 288 (2008)); see also 33 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 8342 (2d ed. 2024)
(“The causation and redressability prongs of constitutional standing often boil down to the
same thing—i.e., where a certain action is causing a claimed injury, vacating that action will
provide redress for that injury.”).
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Petroleum Co., 339 U.S. 667, 671, 674 (1950) (holding that while the
Declaratory Judgment Act “enlarged the range of remedies available in the
federal courts” it did not alter the Article III jurisdiction of those courts).
Appellants’ injuries are not fairly traceable to Appellees’ conduct.
B
Appellants also failed to satisfy the third element of standing:
redressability. “To satisfy redressability, a plaintiff must show that ‘it is
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.’” Inclusive Cmtys., 946 F.3d at 655 (emphasis in original)
(quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528
U.S. 167, 181 (2000)). The specific form of relief sought must at least lessen
the injury of which plaintiff complains, but it need not completely resolve it.
Id. (citing Sanchez v. R.G.L.,
761 F.3d 495, 506 (5th Cir. 2014)); see also
Denning v. Bond Pharmacy, Inc.,
50 F.4th 445, 452 (5th Cir. 2022) (citing
Uzuegbunam v. Preczewski,
592 U.S. 279, 282 (2021)) (holding plaintiff lacked
standing to sue because her complained-of injury was not redressable by the
award of compensatory and punitive damages she sought).
Appellants’ position regarding redressability is unavailing. The
redress they seek—injunctions against Appellees’ enforcement of Chapter
11—would not remedy their purported injury because they would still have
limited access to state courts. In fact, if LAJs like Judge Jackson were enjoined
from discharging their duties under Chapter 11, Appellants would have no
hope of ever getting into court again, because every action they filed would
be dismissed for failure to obtain the permission their prefiling orders require.
And because Appellees’ conduct did not cause Appellants’ injury, altering or
prohibiting that conduct will do nothing to redress it. Accordingly,
Appellants do not have standing to bring their claims against Appellees
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because the relief they seek against Appellees will not redress Appellants’
injuries.
C
Finally, citing the Ninth Circuit’s decision in Wolfe v. Strankman, 392
F.3d 358 (9th Cir. 2004), Appellants contend that “[a]ffirming lack of
standing would create a conflict between this Court and the Ninth Circuit[,]”
which held that a similarly situated plaintiff had standing to sue similarly
situated defendants. Wolfe did not analyze the issue of standing. The court
only discussed standing as part of its Rooker-Feldman analysis, because the
plaintiff’s myriad references to his previous state lawsuits were not made in
an attempt to appeal or otherwise challenge those lawsuits, but instead to
establish that he had sued in the past and was therefore likely to do so again
in the future. See
id. at 363–64. No express holding in Wolfe runs counter to
a conclusion that Appellants lack standing to sue these Appellees. More
importantly, Wolfe has been overturned. See Munoz v. Super. Ct. of LA Cnty.,
91 F.4th 977, 980–81 (9th Cir. 2024) (“To the extent Wolfe can be read to
hold that the Ex parte Young exception allows injunctions against judges
acting in their judicial capacity, that conclusion is ‘clearly irreconcilable’ with
[Whole Woman’s Health] and thus overruled.”).
In conclusion, Appellants have not established standing to bring their
claims against Appellees.
…
We AFFIRM the district court’s judgment. All outstanding motions
are DENIED AS MOOT.
13
