Jerry Reed v. Allison Taylor

Case: 17-20519 Document: 00514940593 Page: 1 Date Filed: 05/02/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-20519 May 2, 2019

Lyle W. Cayce

JERRY REED, Clerk

Plaintiff–Appellant,

v.

ALLISON TAYLOR, in her Individual Capacity; BARBARA MACNAIR, in

her Official and Individual Capacity; PROGRAM SPECIALIST HOLLY

WHITE, in her Official and Individual Capacity; KRISTY ALFORD, in her

Official and Individual Capacity; MARSHA MCLANE, in her Official

Capacity,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Texas

Before ELROD, WILLETT, and DUNCAN, Circuit Judges.

DON R. WILLETT, Circuit Judge:

Jerry Reed is a civilly committed sexually violent predator. Under now-

repealed Texas law, he had to pay for GPS monitoring or else face criminal

prosecution. Reed’s sole income, though, was Social Security. He contends that

the pay-or-be-prosecuted penalty violated the Social Security Act’s anti-

attachment provision, 42 U.S.C. § 407(a), which protects benefits from

“execution, levy, attachment, garnishment, or other legal process.”

Reed is mistaken. His Social Security benefits were not executed on,

levied, attached, or garnished. And “other legal process” is not a limitless

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catchall. The time-honored ejusdem generis canon confines the phrase to

processes like those specifically enumerated. Section 407(a) has a familiar

specific-then-general syntactic construction where the upfront enumeration

limits the tagalong residual phrase. In other words, “other legal process”

doesn’t mean any process; it means other similar process. And because the

threat of criminal prosecution differs materially from the specific processes

listed, we AFFIRM the district court’s judgment.

I

The Texas Office of Violent Sex Offender Management was responsible

for Reed’s treatment and supervision. 1 Texas Health and Safety Code Chapter

841 and Reed’s Order of Commitment require him to wear a GPS tracking

device. 2 Chapter 841 also requires him to pay for the tracking service. 3 During

the applicable period, failure to pay was punishable as a third-degree felony. 4

(The criminal penalty was repealed in 2015. 5) The defendant officials each

implemented or enforced that statutory requirement. 6 Put differently, each

official told Reed he had to pay for GPS tracking or be liable for a felony.

1 This entity has since been renamed the Texas Civil Commitment Office.

2 TEX. HEALTH & SAFETY CODE § 841.082(a)(4).

3 Id. § 841.084(a)(1)(B). The district court helpfully summarized how the various

Chapter 841 provisions operated:

While the penal statue § 841.085 never referenced a violation of § 841.084,

which is the statute imposing on the SVP [sexually violent predator] an

obligation to pay for the tracking service, it did . . . criminalize a failure to

participate in and comply with the sex offender program provided by OVSOM

[Office of Violent Sex Offender Management] and to comply with all written

requirements imposed by OVSOM.

4 Act of June 18, 1999, 76th Leg., R.S., § 4.01 (codified as amended at TEX. HEALTH &

SAFETY CODE § 841.085).

5 See Act of June 17, 2015, 84th Leg., R.S., § 19 (codified at TEX. HEALTH & SAFETY

CODE § 841.085) (repealing criminal penalty for noncompliance with § 841.082(a)(3)).

6 For purposes of this appeal the defendant officials are Allison Taylor, Barbara

MacNair, Holly White, and Kristy Alford.

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Reed is “totally blind” and receives Social Security disability benefits.

For at least part of the applicable time, Social Security was his only source of

income. Reed asserts that requiring him to pay for GPS monitoring under

threat of criminal prosecution subjected his Social Security money to “other

legal process” in violation of § 407(a). He sued the officials for damages under

42 U.S.C. § 1983.

The district court granted summary judgment to the officials based on

qualified immunity, holding that the threat of criminal prosecution wasn’t

“other legal process” under clearly established law. Reed appealed. We

appointed counsel to assist Reed under the circuit’s pro bono program and

deeply appreciate counsel’s able representation.

II

The rules governing our consideration are familiar.

First, the standard of review. We review immunity-based grants of

summary judgment de novo. 7

Second, the summary-judgment standard. Under Rule 56, summary

judgment is proper “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” 8

Third, the qualified-immunity standard. “The doctrine of qualified

immunity shields officials from civil liability so long as their conduct ‘does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’ ” 9 “Once invoked, a plaintiff bears the

burden of rebutting qualified immunity by showing two things: (1) that the

7 Stidham v. Tex. Comm’n on Private Sec., 418 F.3d 486, 490 (5th Cir. 2005) (“We

review de novo the district court’s grant of summary judgment based on qualified

immunity.”).

8 FED. R. CIV. P. 56(a).

9 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)).

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officials violated a statutory or constitutional right and (2) that the right was

‘clearly established at the time of the challenged conduct.’” 10 Clearly

established means that “[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that

right.” 11 “The central concern is whether the official has fair warning . . . .” 12

“To answer that question in the affirmative, we must be able to point to

controlling authority—or a ‘robust consensus of persuasive authority’—that

defines the contours of the right in question with a high degree of

particularity.” 13

III

The question is straightforward: Did the GPS payment policy subject

Reed’s Social Security benefits to “execution, levy, attachment, garnishment,

or other legal process” in violation of § 407(a)? The answer, equally

straightforward, is no.

A

Our Constitution’s ingenious architecture demands that judges be

sticklers when decoding legislative text. The law begins with language, and the

foremost task of legal interpretation is divining what the law is, not what the

judge-interpreter wishes it to be.

On that score, our precedent favors bright lines and sharp corners,

including unswerving fidelity to statutory language: “Text is the alpha and the

omega of the interpretive process.” 14 Judges are minders, not makers or

10 Perniciaro v. Lea, 901 F.3d 241, 255 (5th Cir. 2018) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011)).

11 Anderson v. Creighton, 483 U.S. 635, 640 (1987).

12 Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018).

13 Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quoting al-

Kidd, 563 U.S. at 742).

14 United States v. Maturino, 887 F.3d 716, 723 (5th Cir. 2018); see also, e.g., United

States v. Lauderdale County, 914 F.3d 960, 964 (5th Cir. 2019) (“The task of statutory

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menders. All to say, we must take Congress at its word, presume it meant what

it said, and refuse to revise statutes under the guise of interpreting them. 15

True, congressional handiwork is now and again imprecise—sometimes

inadvertently, sometimes intentionally. But judges rarely need secret decoder

rings to decrypt legislative language. Statutory language, like all language, is

suffused with age-old interpretive conventions. And judges, like all readers,

must be attentive not to words standing alone but to surrounding structure

and other contextual cues that illuminate meaning. 16

This case is about the legal interpretation of three words—“other legal

process”—but that task requires us to discern the meaning of accompanying

words and how they are knit together. 17 Robotic literal parsing can sometimes

cloak rather than clarify. 18 In this case, familiar linguistic clues—not to

mention on-point Supreme Court precedent—reveal § 407(a)’s semantic import

as a harmonious whole.

B

Our inquiry begins and ends with the text of § 407(a), which limits the

taking of Social Security benefits:

interpretation begins and, if possible, ends with the language of the statute.” (quoting Trout

Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013))).

15 Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[I]n interpreting a

statute a court should always turn to one, cardinal canon before all others. We have stated

time and again that courts must presume that a legislature says in a statute what it means

and means in a statute what it says there.” (citations omitted)).

16 See United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018) (“[T]ext may not be

divorced from context.” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 356

(2013))).

17 See Doe v. KPMG, LLP, 398 F.3d 686, 688 (5th Cir. 2005) (“When interpreting a

statute, we start with the plain text, and read all parts of the statute together to produce a

harmonious whole.”).

18 See Ramos-Portillo v. Barr, 919 F.3d 955, 960 (5th Cir. 2019) (“In interpreting a

statute, we do not look at a word or a phrase in isolation. The meaning of a statutory provision

‘is often clarified by the remainder of the statutory scheme . . . .’” (quoting Util. Air Regulatory

Grp. v. EPA, 573 U.S. 302, 321 (2014))).

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The right of any person to any future payment under this

subchapter shall not be transferable or assignable, at law or in

equity, and none of the moneys paid or payable or rights existing

under this subchapter shall be subject to execution, levy,

attachment, garnishment, or other legal process, or to the

operation of any bankruptcy or insolvency law.

The phrasing of the bolded language requires application of the ejusdem

generis canon: “[w]here general words follow specific words in a statutory

enumeration, the general words are construed to embrace only objects similar

in nature to those objects enumerated by the preceding specific words.” 19

Section 407(a) follows this familiar semantic structure, meaning the follow-on

phrase “other legal process” is limited to processes like “execution, levy,

attachment, [or] garnishment.” Common phrasing; common-sense meaning. A

broader reading would “fail[] to give independent effect to the statute’s

enumeration of the specific categories” earlier in the sentence. 20

The Supreme Court agrees. In Keffeler, the Court held that the “usual

rules of statutory construction” require a “restrictive understanding of ‘other

legal process.’” 21 The issue was whether the state of Washington could use

children’s Social Security benefits to reimburse itself for their foster care. 22 The

plaintiffs contended that this unlawfully subjected the children’s benefits to

“other legal process.” 23 The Court invoked both ejusdem generis and noscitur a

19 Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (alteration in

original) (quoting 2A N. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION

§ 47.17 (1991)).

20 Id. at 114; see CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 295 (2011)

(“We typically use ejusdem generis to ensure that a general word will not render specific

words meaningless.”); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 199–200 (2012).

21 Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537

U.S. 371, 385–86 (2003).

22 Id. at 375.

23 Id. at 383.

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sociis. 24 It held that “other legal process” in context means “process much like

the processes of execution, levy, attachment, and garnishment” and so requires

(1) “utilization of some judicial or quasi-judicial mechanism,” (2) “by which

control over property passes from one person to another,” (3) “to discharge or

secure discharge of an allegedly existing or anticipated liability.” 25 So

Washington’s use of Social Security money to offset foster care expenses was

not “other legal process.” It did not use judicial or quasi-judicial means; did not

pass control of any funds (which were already in the state’s possession because

it had “representative payee” status under the Act); and did not discharge an

enforceable obligation. 26

Applying Keffeler to this case, the specter of prosecution is not “other

legal process.” Although the threat led to a transfer of property, and arguably

discharged a Chapter 841 liability, it did not use a judicial or quasi-judicial

mechanism. A threat of future action is not an “exercise of some sort of judicial

or quasi-judicial authority to gain control over another’s property” as Keffeler

puts it. 27 Congress protected Social Security beneficiaries from judicially

enforced transfers, not threats of liability. 28

Reed’s contrary cases are distinguishable or otherwise unpersuasive in

light of Keffeler. First are two other Supreme Court cases interpreting § 407(a).

In Philpott v. Essex County Welfare Board, the Court prohibited New Jersey

from attaching a man’s Social Security money to secure his repayment of state

welfare benefits. 29 The Court held that this action “was an attempt to subject

24 Id. at 384.

25 Id. at 385.

26 Id. at 386.

27 Id.

28 See Wojchowski v. Daines, 498 F.3d 99, 106–10 (2d Cir. 2007) (overruling, based on

Keffeler, Second Circuit precedent that threats are “other legal process”).

29 409 U.S. 413, 415 (1973).

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the money to ‘levy, attachment . . . or other legal process’” and thus violated

§ 407(a). 30 Similarly, in Bennett v. Arkansas the Court held that Arkansas

could not “attach certain federal [Social Security] benefits paid to individuals

who are incarcerated in Arkansas prisons.” 31

Both Philpott and Bennett are distinguishable. They do not interpret

“other legal process.” Rather, as the Court explained in Keffeler, “both Philpott

and Bennett involved judicial actions in which a State sought to attach a

beneficiary’s Social Security benefits . . . . Unlike the present case, then, both

Philpott and Bennett involved forms of legal process expressly prohibited by

§ 407(a).” 32

Reed also cites dicta from our unpublished decision In re Mayer. 33 Mayer

held that a court’s sanction, payable by necessity from the party’s Social

Security benefits, was not “other legal process” under § 407(a). 34 It

distinguished the sanction from the “threat of a lawsuit,” suggesting that

§ 407(a) might forbid such a thing. 35 But the Supreme Court’s later decision in

Keffeler undermined this dictum when it held that “other legal process” must

be similar to the enumerated judicial actions. 36

Reed next cites the Eight Circuit’s pre-Keffeler decision King v. Schafer. 37

The issue was whether Missouri could access committed mental-health

patients’ Social Security benefits to pay for their care. 38 The court faced two

types of alleged “other legal process.” First, where the patients’ family

30 Id. at 416 (ellipsis in original) (quoting 42 U.S.C. § 407(a)).

31 485 U.S. 395, 396 (1988) (per curiam).

32 537 U.S. at 388.

33 193 F.3d 516, 1999 WL 706062, at *4 (5th Cir. 1999) (unpublished).

34 Id.

35 Id.

36 See 537 U.S. at 385.

37 940 F.2d 1182 (8th Cir. 1991).

38 Id. at 1183.

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members were receiving the benefits as representative payees, the court held

that § 407(a) prohibited the state from threatening to sue them or seize their

state income tax refunds unless they remitted the money for their relatives’

care. 39 Such a threat was prohibited “other legal process.” 40 This holding

supports Reed’s theory that a threat of legal action can violate § 407(a). Second,

where the state was receiving the benefits as representative payee, its use of

the money to offset costs of the beneficiaries’ care was not “other legal

process.” 41 The state’s representative-payee status was material because a

procedure explicitly endorsed in one part of the Act could not be prohibited

under a different part. 42

King is persuasive only to the extent it doesn’t conflict with Keffeler.

Promisingly for Reed, the Supreme Court in Keffeler cited King favorably. 43

But the Court cited only the holding that the state could use the funds when it

was a representative payee; it did not address the portion of King that’s

relevant here—the state’s ability to threaten judicial action when it is not a

representative payee. 44 That holding had no application in Keffeler, because

Keffeler was not about threats and was limited to the state-as-representative-

payee context. 45 Despite following King’s representative-payee holding, Keffler

implicitly disapproved King’s threats holding. The Court’s textual analysis of

39 Id. at 1185.

40 Id. (“What the state cannot do, it cannot threaten to do.”).

41 Id.

42 Id.

43 537 U.S. at 384 n.7.

44 See id.

45 See id. at 382–83 (“The questions to be answered in resolving this case . . . are

whether the department’s effort to become a representative payee, or its use of respondents’

Social Security benefits when it acts in that capacity, amounts to employing an ‘execution,

levy, attachment, garnishment, or other legal process’ within the meaning of § 407(a).”).

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§ 407(a) is inconsistent with King’s holding that threats are other legal

process. 46 King cannot save Reed’s argument in this case. 47

Finally, Reed argues that criminal prosecution of debtors has historically

been used as legal process to collect obligations and secure the transfer of

property, so it is similar to execution, levy, attachment, or garnishment. But

Reed supports this proposition only by citation to a journal article, not

controlling or persuasive law, and he acknowledges that criminal prosecution

of debtors is “archaic.” The officials in this case did not violate § 407(a) by

threatening to enforce Chapter 841’s criminal penalties. 48

46 See Keffeler, 537 U.S. at 385; Wojchowski, 498 F.3d at 106–10 (overruling, based on

Keffeler, Second Circuit precedent that threats are “other legal process”).

47 Reed cites one post-Keffeler case holding that a threat is “other legal process.”

Albright v. Allied Int’l Credit Corp., No. CV034828CAS(RZX), 2003 WL 22350928, at *3 (C.D.

Cal. Aug. 25, 2003). Albright attempts to distinguish Keffeler because it did not expressly

address threats of future action. Id. This is unconvincing. An executive (or private) threat of

future action is not the same as the concrete “writ[s],” “order[s],” or “summons” analogized in

Keffeler, which generally would have been approved by a court. 537 U.S. at 385 (quoting

Social Security Administration Program Operations Manual System).

48 A decade ago in Pearson v. Callahan, the Supreme Court altered the mechanics of

qualified-immunity analysis. 555 U.S. 223, 231 (2009). In short, Pearson relaxed the

categorical Saucier two-step inquiry that had required courts to first decide whether the law

was violated before turning to whether the law was clearly established. See Saucier v. Katz,

533 U.S. 194 (2001). Post-Pearson, courts have case-by-case discretion to leapfrog Prong One

if Prong Two is outcome-determinative. 555 U.S. at 236. In this case, as in most, we believe

it is worthwhile to follow the Saucier sequence and not bypass the first inquiry. First, ejusdem

generis renders the textual analysis easy. In many cases the Prong One issue is doubly

challenging: legally difficult and inadequately briefed. Neither is true here. Second, as a

practical matter, identifying whether this law was clearly established requires almost all the

work of deciding whether a violation occurred. Examining one necessarily overlaps with the

other. It is “difficult to decide whether [the] right is clearly established without deciding

precisely what the existing . . . right happens to be.” Id. (quoting Lyons v. Xenia, 417 F.3d

565, 581 (6th Cir. 2005) (Sutton, J., concurring)). Third, confronting Prong One enables us to

reinforce bedrock principles of statutory interpretation that have application beyond this

case. See Zadeh v. Robinson, 902 F.3d 483, 493 (5th Cir. 2018). Fourth, as the Supreme Court

has itself modeled, it advances the development of the law to clarify for future cases what

conduct is prescribed and proscribed. See Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)

(noting that the Saucier procedure remains “worthwhile,” and even if Prong Two is itself

determinative, addressing Prong One “is often beneficial” because it “promotes the

development of constitutional precedent” (quoting Pearson, 555 U.S. at 236)); see also, e.g.,

Zadeh, 902 F.3d at 498–99 (Willett, J., concurring dubitante) (flagging the concern of

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C

Alternatively, the officials’ challenged conduct did not violate a clearly

established right. 49 Even if Keffeler’s interpretation of “other legal process”

could encompass the threat of criminal prosecution, Reed has not identified

“controlling authority” or a “robust consensus of persuasive authority” that

defined the right favorably to him “with a high degree of particularity.” 50 The

officials are thus entitled to qualified immunity under either prong. 51

IV

Criminalizing a sexually violent predator’s failure to pay for GPS

monitoring is not “other legal process” under § 407(a). The district court

correctly interpreted the anti-attachment provision; the Texas officials are

entitled to qualified immunity; and we AFFIRM.

“constitutional stagnation”—“fewer courts establishing law at all, much less clearly doing

so”). Section 407(a) remains on the books, even if Texas’s noncompliance penalty does not.

49 See Plumhoff, 572 U.S. at 781 (holding that defendants did not violate the asserted

right and, in the alternative, did not violate clearly established law).

50 Morgan, 659 F.3d at 371–72 (quoting al-Kidd, 563 U.S. at 742).

51 Today’s decision only reaches whether the officials’ actions violated § 407(a) and

whether this was clearly established. We otherwise express no opinion about Texas’s now-

repealed policy.

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JENNIFER WALKER ELROD, Circuit Judge, concurring in the judgment:

I agree with the panel majority’s ultimate conclusion. We should affirm

the district court’s grant of summary judgment. But we should reach that

conclusion by addressing only the second prong of qualified immunity—not the

first.

In 2015, as the panel majority observes, Texas repealed the criminal

penalty for failure to pay for GPS monitoring. Resolving whether that state

law violates the Social Security Act is therefore unnecessary because the law

no longer exists. The main justifications for addressing the first prong of

qualified immunity are to prevent stagnation in the law’s development and to

keep “government officials [from] violat[ing] . . . rights with impunity.” Aaron

Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L.

Rev. 1, 12 (2015) (quoting Jack M. Beermann, Qualified Immunity and

Constitutional Avoidance, 2009 Sup. Ct. Rev. 139, 149). Neither concern is

implicated here. We need not illuminate whether threatening a social security

beneficiary with prosecution is legal under federal law; it is not even legal

under state law anymore. And we need not prevent officials from potentially

violating the rights of social security beneficiaries in this way because state

law no longer allows those officials to do so. 1 All that remains is whether Reed

is entitled to damages. It is enough to answer that question by looking

The State of Texas—knowing that Congress had protected social security benefits

1

from “execution, levy, attachment, garnishment, or other legal process,” 42 U.S.C. § 407(a)—

sought out other avenues to procure payment for GPS monitoring from a blind person whose

sole income was social security benefits. The State threatened Reed with criminal

prosecution—for a third-degree felony—if he failed to fork over some of his social security

benefits. Succumbing to this threat, Reed called a cab each month to travel to his local

grocery store and purchase a money order. Every month, he received somewhere between

$628 and $731 in social security benefits and mailed a money order between $95 and $167 to

keep the would-be felony prosecutors at bay.

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exclusively to whether the law in this area was clearly established at the time

that Reed made his coerced payments. I agree with the panel majority that it

was not. For that reason, I concur in the judgment.

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