Case: 20-40267 Document: 00516389535 Page: 1 Date Filed: 07/11/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 11, 2022
No. 20-40267 Lyle W. Cayce
Clerk
George Lee Tucker, II,
Plaintiff—Appellant,
versus
Steve Gaddis,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:14-CV-659
Before King, Graves, and Ho, Circuit Judges.
Per Curiam:
For years, the Texas Department of Criminal Justice (“TDCJ”) has
denied prisoner requests to hold religious gatherings for the Nation of Gods
and Earths (“the Nation”). Originally, Texas denied such requests on the
ground that it perceived the Nation as a racial supremacy group, and that
allowing such an assembly would pose a security threat to the prison.
In response, Plaintiff George Lee Tucker II brought this suit against
Steve Gaddis, TDCJ’s Deputy Director of Volunteer Services and Special
Populations, in the hope of vindicating the rights of the Nation’s adherents
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to congregate. The suit was initially filed pro se over half a decade ago. But
Tucker began receiving the aid of pro bono legal counsel a few years later.
The State now says that it has promulgated a new policy to govern
congregation requests on behalf of the Nation’s adherents. As a result, the
State contends that this suit is now moot.
We disagree. The new policy merely allows Tucker to apply for a
congregation. It does not in fact allow the Nation to congregate. To the
contrary, any such requests remain subject to “time, space, and safety
concerns.” And to date, Texas has never permitted the Nation’s adherents
to congregate. Nor is there any indication that Texas will allow them to do
so anytime soon. So this case is not moot. Accordingly, we reverse.
I.
Texas provides two types of communal religious services for inmates.
It allows an hour of weekly “primary” religious services through a TDCJ
chaplain for members of ten recognized religious groups—Catholicism, NonRoman Catholic Christianity, Islam, Sabbatarianism, Judaism, Native American religions, Neo-Paganism, Eastern Religion, Jehovah’s Witnesses, and
Mormonism. In addition, adherents of these recognized religions can seek
“secondary” services, led by an approved outside volunteer, subject to time,
place, and security requirements as established by TDCJ’s Religious Practices Committee.
For adherents of other religions not recognized by TDCJ, however,
no primary religious services are permitted. Inmates may only apply for secondary services. But that is subject to the approval of the Committee and
must be led by an outside volunteer director.
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From 2007 to 2014, Texas categorized the Nation’s adherents as
members of the Islamic faith. As a result, they had access to primary Islamic
religious services.
But that changed in 2014, when the Committee determined that the
Nation is a racial supremacy group that would pose a security threat if allowed to congregate. Accordingly, the Committee removed the Nation from
the Islamic category and refused to allow its members access to either primary or secondary services. So when Tucker applied for a secondary service
in 2015, he was refused because of the Committee’s categorical ban on the
Nation’s ability to congregate.
Tucker filed suit stating various claims, only one of which remains at
issue in this appeal—a claim for a declaration that, under the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”), TDCJ must allow secondary services for the Nation. The district court assumed that the Nation
is a “religion” for purposes of RLUIPA. The court then dismissed Tucker’s
claim for secondary services, finding TDCJ’s ban on the Nation from congregating was the least restrictive means of maintaining security.
On appeal, this court vacated the judgment to the congregation claim,
holding that there were genuine disputes of material fact as to “whether the
state’s ban: (1) advances a compelling interest (2) through the least restrictive means.” Tucker v. Collier (Tucker I), 906 F.3d 295, 302 (5th Cir. 2018).
This court remanded the claim back to the district court.
While the case was on remand, the Committee again altered its policies with respect to the Nation. First, it once again categorized the Nation’s
adherents as members of the Islamic faith, thereby allowing them to participate in primary services. Second, it allowed members of the Nation to apply
for secondary services subject to the same conditions as other faiths—it must
obtain an approved volunteer, and the Committee must approve the
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congregation based on time, venue, and security concerns. It also approved
the receipt and acquisition of the Nation’s literature and the celebration of
the Nation’s holy days.
After adopting the changes, TDCJ sought summary judgment on the
grounds that Tucker’s case was moot. TDCJ assured the district court that
it had “no intention of revoking Tucker’s religious rights” and detailed its
affirmative efforts to help the Nation obtain secondary services. The district
court dismissed Tucker’s claim as moot, finding that TDCJ’s changes were
made in good faith.
II.
“The doctrine of mootness arises from Article III of the Constitution,
which provides federal courts with jurisdiction over a matter only if there is
a live ‘case’ or ‘controversy.’” Dierlam v. Trump, 977 F.3d 471, 476 (5th Cir.
2020) (citing DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 352 (2006)).
“[A]s long as the parties have a concrete interest, however small, in the
outcome of the litigation, the case is not moot.”
Id. This court reviews
questions of federal jurisdiction, including mootness, de novo. Freedom from
Religion Found. v. Abbott,
955 F.3d 417, 423 (5th Cir. 2020).
To determine whether Tucker received relief from the change in
policy, we consider his original demands in his complaint. Tucker’s
complaint was submitted pro se. “The filings of a pro se litigant are to be
‘liberally construed’ and a ‘pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019)
(quoting Erickson v. Pardus,
551 U.S. 89, 94 (2007)) (cleaned up).
TDCJ asserts that the crux of Tucker’s claim is about eliminating the
absolute ban on the Nation’s ability to congregate. As TDCJ explains, its
recent change in policy now allows Tucker to apply for secondary
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congregations “subject to time, venue, and security concerns—the same
conditions applied to other faiths.” Thus, TDCJ argues that Tucker has
received his desired relief given that the Nation is on the same footing as
other religious groups.
But Tucker’s original complaint does not merely seek an equal right
to apply for secondary services. It asks for the “[a]ccommodation of the
[Nation] with the provisions of scheduled time and venue for [the Nation’s]
assembly and practice.” To date, Tucker and his fellow Nation adherents
have not had the opportunity to congregate.
In response, TDCJ notes that there are no available external
volunteers—a necessary requirement for secondary service. But at oral
argument, counsel for TDCJ admitted that, even if Tucker could locate a
willing volunteer, TDCJ could not guarantee congregation because such a
request would still be subject to “time, space, and security concerns.”
In other words, TDCJ’s policy change gives Tucker nothing more
than the right to apply for a congregation—to date TDCJ has never approved
the Nation for congregation. And it is the latter that this suit seeks to obtain.
The Supreme Court has explained that “[t]he test for mootness in
cases such as this is a stringent one.” City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 n.10 (1982). TDCJ bears the “heavy” burden of demonstrating mootness. Pederson v. La. State Univ.,
213 F.3d 858, 874 (5th Cir.
2000) (quotations omitted). “A case is not rendered moot simply because
there is a possibility, or even a probability, that the outcome of a separate
administrative proceeding may provide the litigant with similar relief.” El
Paso Elec. Co. v. FERC,
667 F.2d 462, 467 (5th Cir. 1982).
TDCJ claims that its policy change moots this case. But “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did,
the courts would be compelled to leave the defendant free to return to his old
ways.” Aladdin’s Castle, 455 U.S. at 289 n.10 (cleaned up).
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To be sure, “[a] case might become moot if subsequent events made
it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Id. (emphasis added). But the government has not even
bothered to give Tucker any assurance that it will permanently cease engaging in the very conduct that he challenges. To the contrary, as noted, counsel
for TDCJ stated precisely the opposite during oral argument—TDCJ would
not guarantee congregation in the future, but instead would reserve the question in light of potential “time, space, and security concerns.” If anything, it
is far from clear that the government has ceased the challenged conduct at
all, let alone with the permanence required under the “stringent” standards
that govern the mootness determination when a defendant claims voluntary
compliance. For each of these reasons, this case cannot possibly be moot.
…
We reverse and remand for further proceedings.
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King, Circuit Judge, concurring:
I concur. I agree that Tucker has not yet achieved the full relief he
sought in his initial pro se complaint and that, therefore, this case is not moot.
I write separately to dispel any implication that the TDCJ’s current actions
and policies are in error, especially if that implication is drawn from the
TDCJ’s statement (which was made at oral argument) that it “could not
guarantee congregation because such a request would still be subject to ‘time,
space, and security concerns.’” Ante, at 5. Any consideration of how the
TDCJ is applying its broadly applicable policies, which affect all inmates and
every religious creed to which they belong, goes to the merits of Tucker’s
case and is beyond the scope of this appeal. Instead, Tucker’s live claim must
be considered in light of these global rules of engagement to ensure that they
are being applied fairly and equally and are not being used as clandestine
measures to renew a de facto form of the TDCJ’s former categorical ban.
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James C. Ho, Circuit Judge, concurring:
“Worthy civil rights claims are often never brought to trial.” Wearry
v. Foster, 33 F.4th 260, 278 (5th Cir. 2022) (Ho, J., dubitante). That’s
because government officials have a number of legal tools at their disposal to
avoid being held accountable in the courts.
When a plaintiff seeks money damages, “an unholy trinity of legal
doctrines—qualified immunity, absolute prosecutorial immunity, and Monell
. . . —frequently conspires to turn winnable claims into losing ones.” Id.
And if a plaintiff foregoes damages and asks for an injunction instead,
public officials often try to evade trial by claiming the case is moot: Just stop
engaging in the challenged conduct, declare that there’s no need for an
injunction, and see if enough compliant and deferential judges agree.
So no damages for past injury, due to immunity—and no injunction to
stop future injury, due to mootness. Heads I win, tails you lose.
To be clear, it’s not supposed to be this way. It shouldn’t be that easy
for the government to avoid accountability by abusing the doctrine of
mootness. But judges too often dismiss cases as moot when they’re not—
whether out of an excessive sense of deference to public officials, fear of
deciding controversial cases, or simple good faith mistake. And when that
happens, fundamental constitutional freedoms frequently suffer as a result.
That’s why legal commentators have bemoaned that acts of “strategic
mooting litter the Federal Reporter.” Joseph C. Davis & Nicholas R. Reaves,
The Point Isn’t Moot: How Lower Courts Have Blessed Government Abuse of the
Voluntary Cessation Doctrine, 129 Yale L.J. Forum 325, 328 (2019). Because
judicial acceptance of such gamesmanship “harm[s] both good sense and []
individual rights” and “depriv[es] the citizenry of certainty and clarity in the
law” by “preventing the final resolution of important legal issues.” Id.
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I am thankful that our court does not make that same mistake today.
But I continue to worry that judges may be tempted to misapply mootness in
other cases—not to ensure that we decide only actual cases or controversies,
but to avoid deciding cases that happen to be controversial.
Concerns about mootness abuse have been aired by an increasing
number of members of the federal judiciary in recent years. See, e.g., N.Y.
State Rifle & Pistol Association, Inc. v. City of New York, 140 S. Ct. 1525, 1527
(2020) (Alito, J., dissenting, joined by Gorsuch, J., and by Thomas, J., in
part); Hawse v. Page,
7 F.4th 685, 694 (8th Cir. 2021) (Stras, J., dissenting);
Resurrection School v. Hertel,
35 F.4th 524, 531 (6th Cir. 2022) (en banc)
(Readler, J., concurring in part and dissenting in part);
id. at 532 (Bush, J.,
dissenting, joined by Siler and Griffin, JJ.). 1
I write separately today to concur in their views, as well as in the views
of my panel colleagues today.
I.
Article III of the Constitution limits the judicial power to “cases” and
“controversies.” U.S. Const. art. III, § 2. That means that the judiciary
decides only “live” disputes—not moot ones. Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013).
1
Experienced public officials in the other branches of government have similarly
sounded the alarm. In the FOIA context, for example, U.S. Senator John Cornyn has
observed that, “when requestors [of information] [] sue agencies,” the government often
“withhold[s] documents . . . until the day before a judge’s ruling,” and then “send[s] a full
box full of documents, render[ing] the lawsuit moot and leav[ing] the requestor with a hefty
legal bill. And the agency gets away scot-free”—that is, liberated from paying attorneys’
fees because the government’s mootness strategy effectively deprives the plaintiff of
prevailing party status for attorney fee purposes. 153 Cong. Rec. 22947 (2007). Congress
subsequently enacted the OPEN Government Act of 2007 to correct this problem. Pub. L.
No. 110-175, 121 Stat. 2524.
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So if a case for whatever reason no longer presents a live controversy,
we typically dismiss it as moot. But “if a case is on our docket and we have
jurisdiction, we have an obligation to decide it.” N.Y. State Rifle, 140 S. Ct.
at 1528 (Alito, J., dissenting). “We have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is not given.” Cohens
v. Virginia,
19 U.S. 264, 404 (1821).
Accordingly, “a defendant cannot automatically moot a case,” and
thereby avoid judicial accountability, simply by “ending its unlawful conduct
once sued.” Already, 568 U.S. at 91. Indeed, it is settled law that “a
defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice.” City of
Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982) (emphasis added).
A defendant may voluntarily abandon certain conduct, and that
abandonment may be “an important factor bearing on the question whether
a court should exercise its power to enjoin the defendant from renewing the
practice.”
Id. “[B]ut that is a matter relating to the exercise rather than the
existence of judicial power.”
Id.
That’s not to say that voluntary cessation can never moot a case. But
“subsequent events [must] make it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” Trinity Lutheran
Church of Columbia, Inc., v. Comer, 137 S.Ct. 2012, 2019 n.1 (2017) (cleaned
up) (emphasis added). We must be certain that a defendant’s voluntary acts
are not mere “‘litigation posturing’”—and that “the controversy is actually
extinguished.” Yarls v. Bunton,
905 F.3d 905, 910 (5th Cir. 2018).
This standard is strict because courts are naturally suspicious—or at
least they should be—of officials who try to avoid judicial review by
voluntarily mooting a case. The skepticism is warranted because the
opportunities and incentives for government defendants are obvious: Any
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“defendant could engage in unlawful conduct, stop when sued to have the
case declared moot, then pick up where he left off, repeating this cycle until
he achieves all his unlawful ends.” Already, 568 U.S. at 91.
So we are “wary of attempts by parties to manufacture mootness in
order to evade review.” N.Y. State Rifle, 140 S. Ct. at 1533 (Alito, J.,
dissenting). See also
id. at 1527 (courts should not “countenance[]”
“manipulat[ion]” of mootness doctrine by government officials to avoid
judicial review). We worry about the “typical case” in which “defendants
may claim repentance and reform through voluntary action only to revert to
their old ways upon dismissal of the suit.” Ctr. for Biological Diversity, Inc. v.
BP Am. Prod. Co.,
704 F.3d 413, 426 (5th Cir. 2013).
That’s why the Supreme Court has repeatedly said that any defendant
who invokes mootness based on voluntary compliance bears a “formidable
burden.” Already, 568 U.S. at 91 (quotations omitted). The standard for
“determining whether a case has been mooted by the defendant’s voluntary
conduct is stringent.” Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc.,
528 U.S. 167, 189 (2000). Defendants bear a “heavy
burden of persuading the court that the challenged conduct cannot
reasonably be expected to start up again.”
Id. (quotations omitted).
This burden is not insurmountable, to be sure. If a government not
only ceases the challenged behavior, but also assures the plaintiffs and the
courts that it will never return to its previous course of conduct, a court might
reasonably decide to credit that promise, and hold the case moot, so long as
it finds no reason to doubt the government’s credibility on this score.
But if the government refuses to offer any such assurance, then the
case can’t be moot. That would defy Supreme Court precedent and make a
mockery of the “stringent” and “formidable” burden that defendants are
required to overcome in such cases.
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It would also defy common sense. President Reagan famously
remarked that “the nine most terrifying words in the English language are
‘I’m from the government and I’m here to help.’” That sentiment may be
too flippant for some. But if a government official tells you that he is not here
to help, even the sunniest optimist should side with the cynic. When that
happens, you best take the official at his word.
So I happily concur with the per curiam opinion. The government’s
refusal to provide any assurance about its future conduct should foreclose any
notion that this case is moot. And of course we do not opine today on the
merits of the religious liberty claims presented in this appeal—only that the
claims deserve a full and fair airing, rather than summary dismissal.
II.
In concurring, however, I am well aware that courts have not always
followed this cautious approach to mootness. Moreover, it’s a problem that
seems to recur with alarming frequency when it comes to religious liberty.
In a series of recent cases involving constitutional challenges to
various COVID-19 policies, our sister circuits enabled public officials to
avoid judicial review by dismissing the claims against them as moot—despite
the fact that the officials refused to promise never to return to their
challenged conduct. See Hawse, 7 F.4th 685; Resurrection School,
35 F.4th
524.
To make matters worse, these officials not only gave no assurances—
they went out of their way to reserve their right to revive their prior behavior
at any time, as detailed in various dissenting opinions. See, e.g., Hawse, 7
F.4th at 699 (Stras, J., dissenting) (noting that the government “repeatedly
‘reserved the right to’ impose further restrictions in response to changing
conditions”);
id. at 700 (“far from renouncing any intent to discriminate
against religion, the County has used its merits brief in this case to defend its
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decision to single out religious activities”); id. (“I trust the County when it
says it might change the rules again, which is why I am not ready to say that
this case is moot.”); Resurrection School,
35 F.4th at 532 (Readler, J.,
concurring in part and dissenting in part) (“[W]hen asked at oral argument
whether the state would commit not to reenact its earlier mandate, the state’s
counsel bluntly responded: ‘Absolutely not.’”);
id. at 545 (Bush, J.,
dissenting) (noting that the government “conceded at oral argument that [it]
could reinstitute its masking order ‘on a moment’s notice,’ ‘without the
legislature,’ ‘on their own,’ and ‘without any other approval’”).
In the face of this intransigence, the majorities preached deference to
political officials in the administration of COVID-19 policy. The majority in
Hawse said that public officials could be trusted not to “flout the Supreme
Court’s intervening pronouncements on equal treatment between religious
exercise and comparable secular activity.” 7 F.4th at 693. Similarly, the
majority in Resurrection School invoked “defendants’ own political
accountability” to justify the withdrawal of judicial review.
35 F.4th at 529.
But when it comes to the protection of constitutional rights, our job is
not to defer—it’s to review. Pandemic or not, it is the duty and function of
the judiciary to ensure accountability of government under the Constitution
and laws of the United States in all cases under Article III, both controversial
and otherwise. See, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.
Ct. 63, 68 (2020) (“[E]ven in a pandemic, the Constitution cannot be put
away and forgotten.”). Our job in these cases is to verify, not trust. See, e.g.,
Tandon v. Newsom,
141 S. Ct. 1294, 1297 (2021) (“This is the fifth time the
Court has summarily rejected the Ninth Circuit’s analysis of California’s
COVID restrictions on religious exercise.”).
So I agree with the dissenters in these cases: Looking the other way
when government claims mootness is an abdication of judicial duty, as well
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as an affront to religious liberty. Cases like these may no doubt “present[]
hard questions.” Hawse, 7 F.4th at 700 (Stras, J., dissenting). But failing to
answer the hard questions “neither furthers religious freedom nor fulfills our
judicial duty.”
Id. To the contrary, it “works an intolerable unfairness” for
people of faith. Resurrection School,
35 F.4th at 552 (Bush, J., dissenting). It’s
“disquieting” in the extreme to discover that “religious free exercise should
hinge upon the caprice of the electorate,” rather than on faithful enforcement
by the judiciary.
Id. at 547. In a word, it’s “indefensible.”
Id. at 552.
Moreover, these abuses are not limited to religious liberty. Mootness
manipulation can occur in any area where government regulates. See, e.g.,
N.Y. State Rifle, 140 S. Ct. 1525 (Second Amendment); Wilderness Society v.
Kane County,
581 F.3d 1198, 1215 (10th Cir. 2009), rev’d on other grounds,
632
F.3d 1162 (10th Cir. 2011) (en banc) (“Kane County rescinded the Ordinance
in a deliberate attempt to render the pending litigation moot, and it seems
poised to reenact a similar ordinance. We appreciate the commissioners’
candor, but they cannot so easily moot environmental plaintiffs’ claims.”).
With the circuits apparently divided on these questions, it will require
action from the Supreme Court to get things back on track.
…
Substantive rights are meaningless if we don’t enforce procedural
rules properly. Cf. Steven S. Smith et al., The American
Congress 222 (9th ed. 2015) (“If I let you write the substance and you let
me write the procedure, I’ll screw you every time.”) (quoting Rep. John
Dingell). We cannot allow government officials to unilaterally avoid judicial
review—and especially not when they openly admit that their change in
behavior is strategic rather than sincere. I concur.
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