Empower Texans, Incorporated v. Charlie Ger

Case: 19-50577 Document: 00515589792 Page: 1 Date Filed: 10/05/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 5, 2020

No. 19-50577

Lyle W. Cayce

Clerk

EMPOWER TEXANS, INCORPORATED; BRANDON C. WALTENS;

DESTIN R. SENSKY,

Plaintiffs - Appellants

v.

CHARLIE L. GEREN, in his official capacity as Chairman of the Committee

on House Administration of the Texas House of Representatives,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:19-CV-422

Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

The Chairman of the Committee on House Administration of the Texas

House of Representatives refused to issue media pass cards to certain

individuals that would have given them access to the floor of the House

chamber. The individuals and their employer sued, and the district court

granted the Chairman’s motion to dismiss based on legislative immunity. We

conclude that the case has become moot. We therefore VACATE and REMAND

to the district court so that the suit can be DISMISSED.

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No. 19-50577

FACTUAL AND PROCEDURAL BACKGROUND

This appeal is taken from the grant of a motion to dismiss. In our review,

then, we must consider the facts to be those alleged in the complaint,

interpreted in the light most favorable to the plaintiff. See Lane v. Halliburton,

529 F.3d 548, 557 (5th Cir. 2008).

The plaintiffs include Empower Texans, Inc., a Texas nonprofit

corporation that publishes the news magazine Texas Scorecard. The other

plaintiffs are Brandon Waltens and Destin Sensky. They are employed by

Empower as reporters who focus their coverage on the Texas Legislature. We

will not differentiate in our discussion and refer to all as “Empower.” Empower

gives ratings to Texas legislators in its Fiscal Responsibility Index and

endorses candidates. Empower has regularly given Representative Charlie

Geren, the Chairman of the Committee on House Administration of the Texas

House of Representatives, an “F” rating. It also has endorsed his challengers

in primary elections.

The Texas House Rules restrict access to the floor of the House chamber.

Rule 5 lists categories of persons who may be admitted to the floor, one of which

is “duly accredited media representatives as permitted by Section 20 of this

rule.” H.R. 5, § 11, 86th Leg., Reg. Sess. (Tex. 2019). A brass railing encloses

the seats of the Representatives. Access to the area inside the railing is

available for “duly accredited media representatives as permitted by Section

20 of this rule.” Id. § 12. A “duly accredited media representative” must satisfy

several criteria, including belonging to an organization

whose publications or operations are editorially independent of

any institution, foundation, or interest group that lobbies the

government or that is not principally a general news organization;

and . . . not engaged in any lobbying or paid advocacy, advertising,

publicity, or promotion work for any individual, political party,

corporation, organization, or government agency.

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Id. § 20(a)(1)(C), (a)(2). If the Committee on House Administration determines

that an applicant meets the requirements, it “shall issue a pass card to the

person.” Id. § 20(d). Geren, as chairman of that committee, is ultimately

responsible for issuing media credential pass cards to qualified applicants.

Waltens and Sensky submitted applications for media passes on January

3, 2019. The following day, Geren responded in writing that he believed they

did not meet the requirements to be eligible for passes. The 86th Texas

Legislative Session began on January 8, 2019. From February to April of 2019,

Empower and the House Business Office, under Geren’s leadership,

corresponded about the applications. That office stated in a letter that the

applications were still under review and asked for more information regarding

the applicants’ eligibility. Empower responded and sent follow-up

communications to the Texas House Speaker and to Geren. The business office

again requested more information and Empower responded by requesting

clarification about the needed information. Empower alleges that Geren’s

failure to issue the press passes was the result of bad-faith viewpoint

discrimination.

Finally, on April 16, without having received a final determination on

the applications, Empower sued Geren. On May 14, Empower filed an

amended complaint alleging constitutional violations and seeking a

declaratory judgment that its employees were entitled to press passes as well

as permanent and preliminary injunctions. On May 16, only eleven days before

the Regular Session of the 86th Texas Legislature ended, Empower filed a

motion for a temporary restraining order and a preliminary injunction. Geren

filed a motion to dismiss based on legislative immunity. On May 23, the

district court granted Geren’s motion to dismiss. Empower did not file its

notice of appeal until June 21.

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DISCUSSION

Article III grants judicial power only over “Cases” or “Controversies.”

U.S. CONST. art. III, § 2. Whether a case or controversy remains live

throughout litigation is a jurisdictional matter because federal courts have no

authority to hear moot cases. United States v. Heredia-Holguin, 823 F.3d 337,

340 (5th Cir. 2016). We conclude that this case has become moot and is not

saved by the exception for cases capable of repetition, yet evading review. As

a result, we lack authority to review the legislative-immunity issue.

Geren argues that this case is moot because the legislative session is over

and there is no ongoing harm. Earlier in the appeal, Empower contended that

only the regular session was over. It claimed that special sessions are common,

meaning the possibility that the 86th Texas Legislature could convene again

kept the case from being moot. In analyzing this, we start with the Texas

Constitution. It provides that the Legislature has regular sessions every other

year. TEX. CONST. art. III, § 5(a). The next regular session is scheduled to

begin in January 2021. At oral argument, the parties were asked about the

possibility of a special legislative session. The parties provided helpful

information indicating that special sessions occur, but they rarely occur in the

year (such as 2020) after a regular session.

At this late date, the possibility of a special session has all but vanished.

Thus, the case is moot under our general rule, and we must determine whether

the plaintiffs’ failure to receive credentials in 2019 falls within an exception to

mootness that might save the case. Empower argues that the “capable of

repetition, yet evading review” exception applies because Geren will

implement the same rules for press passes to cover the first day of the next

legislative session beginning in January 2021, and the harm will repeat

without enough time for Empower’s claims to be fully litigated.

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The exception to mootness for cases that are capable of repetition but

would likely evade review applies if “(1) the challenged action [is] in its

duration too short to be fully litigated prior to cessation or expiration, and (2)

there [is] a reasonable expectation that the same complaining party [will] be

subject to the same action again.” Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969, 1976 (2016) (alterations in original) (quotation marks omitted).

The party seeking to assert the exception bears the burden of showing that it

applies. Spell v. Edwards, 962 F.3d 175, 180 (5th Cir. 2020). The exception,

though, applies “only in exceptional situations.” See, e.g., Kingdomware, 136

S. Ct. at 1976.

One question for the analysis of the doctrine is how much judicial review

is needed. The Supreme Court has stated that a case evades review if its

duration is too short to receive “complete judicial review,” apparently meaning

review in that Court. First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 774

(1978) (emphasis added). The D.C. Circuit at least once made a similar point

that there must be enough time for the Supreme Court to review. See, e.g., Del

Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009).

We find further guidance from one of our opinions analyzing a transfer

student’s claim that he was improperly held to be ineligible for high school

athletics for one year; by the time this court heard the appeal, the year had

expired. Laurenzo v. Miss. High Sch. Activities Ass’n, Inc., 662 F.2d 1117,

1119–20 (5th Cir. Unit A 1981). We held that “the challenged action was in its

duration too short to be fully litigated prior to its cessation,” but the case was

moot because, for that plaintiff, there was no risk of repetition. Id. at 1120.

We do not interpret Laurenzo to have established a calendar for evading

review, in which a claimed injury that will last no more than a year will evade

review. Claims need to be judged on how quickly relief can be achieved in

relation to the specific claim.

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We conclude such issues need not be resolved here because Empower has

not shown it should have the doctrine applied to this appeal. As mentioned

already, a party may proceed beyond mootness “only in exceptional situations.”

Kingdomware, 136 S. Ct. at 1976. If more vigorous efforts earlier in this suit

had the potential of achieving the results the plaintiffs now say they need more

time to achieve, the party has not presented exceptional circumstances. A

party usually must show its claims have evaded the review that was available

for reasons beyond its control before it can ask for more. We explain.

Other circuits have addressed the effect on mootness analysis if the

complaining party did not diligently use the tools it had to get more thorough,

even if not complete, review of the claim that is now moot. The Eighth Circuit

says that in order “to establish that time is too short to litigate a claim,” a party

“must take advantage of [the] legal avenues that would allow for litigation

within the necessary time constraints.” Abdurrahman v. Dayton, 903 F.3d 813,

817 (8th Cir. 2018). That circuit also has held that a “party’s failure to file suit

sooner” foreclosed the argument that mootness should not be a bar because the

suit was one that would evade review. Id. at 817–18 (discussing South Dakota

v. Hazen, 914 F.2d 147, 150 (8th Cir. 1990)).

The D.C. Circuit has made similar holdings. Diligence in the initial

litigation “ensures [that] only situations that truly evade review in an

exceptional way fall under the doctrine’s umbrella.” Newdow v. Roberts, 603

F.3d 1002, 1009 (D.C. Cir. 2010). For example, “a litigant who could have but

did not file for a stay to prevent a counter-party from taking any action that

would moot his case may not, barring exceptional circumstances, later claim

his case evaded review.” Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C. Cir.

2008) (collecting consistent cases across circuits). Here, there was no order to

be stayed, but the relevant point is that a litigant must use the available tools.

“A litigant cannot credibly claim his case ‘evades review’ when he himself has

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delayed its disposition.” Id. at 1296. This principle, the D.C. Circuit also held,

“requires a plaintiff to make a full attempt to prevent his case from becoming

moot, an obligation that includes filing for preliminary injunctions and

appealing denials of preliminary injunctions.” Newdow, 603 F.3d at 1009.

Empower sought both a temporary restraining order and a preliminary

injunction, but the obligation to be diligent did not end there.

Expedited procedures are available in this circuit before certain

categories of cases become moot, such as seeking a stay or injunction pending

appeal. Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393,

398–99 (5th Cir. 2000). Further, “actions for temporary or preliminary

injunctive relief” continue to get “preference in processing and disposition.”

5TH CIR. R. 47.7(4). One of this court’s panels held that if “prompt application

for a stay pending appeal can preserve an issue for appeal, the issue is not one

that will evade review.” Ashford Hosp. Prime, Inc. v. Sessa Capital (Master),

L.P., 673 F. App’x 401, 404 (5th Cir. 2016) (quoting N.Y.C. Emps.’ Ret. Sys. v.

Dole Food Co., 969 F.2d 1430, 1435 (2d Cir. 1992)).

The Ninth Circuit has similarly held that an action did not evade review

when the party did “not demonstrate[] that expedited review would have been

unavailable.” Hamamoto v. Ige, 881 F.3d 719, 723 (9th Cir. 2018).1

In summary, exceptional circumstances justifying a court’s moving

beyond actual mootness will be less likely found when the party seeking review

failed to utilize the procedures that had been available. A party seeking to

continue litigation after time has run out should not be allowed to do so when

it failed to use the time it had.

1 The circuits are not unanimous. The Third Circuit rejected an agency’s argument

that an issue did not evade review when the party could have but did not seek expedited

review. Del. Dep’t of Nat. Res. & Envtl. Control v. U.S. Envtl. Prot. Agency, 746 F. App’x 131,

134 (3d Cir. 2018). The court stated that failure to seek expedited review “carrie[d] no weight

in [its] analysis.” Id. It weighs with many circuits, though, as our previous discussion shows.

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We apply these considerations to the appeal. The 86th Texas Legislative

Session began in January 2019, and Empower sought credentials immediately.

It was May, though, before Empower sought a preliminary injunction, just

eleven days before the regular session ended. An earlier request and denial

would have allowed this court to be called on to review the denial with some

urgency. Even after the district court granted Geren’s motion to dismiss on

May 23, 2019, the notice of appeal was not filed until June 21.

Purposeful delay by the defendant in an effort to evade review is another

relevant consideration. See ITT Rayonier Inc. v. United States, 651 F.2d 343,

346 (5th Cir. Unit B 1981). To be clear, a Unit B opinion, which meant that

the Fifth Circuit judges on the panel would serve on the Eleventh Circuit

beginning in October 1981, is precedent in this circuit. 2 In Rayonier, we were

“reluctant to permit a federal agency to so arrange its timetables that the scope

of its authority would continue to elude judicial scrutiny.” Id. This could also

apply to purposeful efforts to delay judicial review. The events of the denial in

2019 indicate that the defendant did not give an immediate answer to the

request for credentials. Though Empower requested credentials before the

Regular Session of the 86th Texas Legislature began, the House Business

Office’s requests for more information and Empower’s responses delayed a

decision. Empower and similarly situated plaintiffs are not entitled to file suit

at the first moment of disagreement. Nonetheless, when delay appears to be

due to a persistent refusal to render a decision in order to evade judicial review,

that argument can be raised in litigation. See id.

2 When the court created these temporary administrative units, it also proclaimed

there would remain “only one body of law” for the Fifth Circuit as the two units resolved their

respective cases. Resolution of the Judicial Council of the United States Court of Appeals for

the Fifth Circuit (May 5, 1980). Therefore, a published Unit B opinion became part of that

one body of law. It is as binding in this circuit as a published Unit A opinion by a panel of

judges who would remain members of the Fifth Circuit after the circuit was split.

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Crucially, Empower never asked this court to expedite its appeal. Both

the Federal Rules of Appellate Procedure and this court’s local rules allow a

party to move the court for an expedited appeal. See FED. R. APP. P. 2; 5TH CIR.

R. 27.5. Empower did not take advantage of these rules. That relaxed

approach can be contrasted with a recent case in this court involving a plaintiff

who similarly sought an injunction against public officials so that he could

attend school-district meetings and activities. See Monroe v. Hous. Indep. Sch.

Dist., 794 F. App’x 381, 383 (5th Cir. 2019). In Monroe, two days after the

appealed was docketed, the plaintiff–appellant filed a motion for expedited

appeal which, he argued, was “necessary to redress [the] ‘irreparable injury.’”

We granted that motion and moved the case along with appropriate dispatch.

In contrast, Empower demonstrated no such urgency. When time is of the

essence, a party must act like it.

The availability of these procedures shows that if the plaintiffs request

credentials and the request is again denied, the suit is not one that is likely to

evade meaningful review. Whether it would evade review, including by the

Supreme Court, we consider to be an issue for another case. Because Empower

did not utilize the opportunities it had in its first suit, it cannot complain that

the dispute has evaded review.

We VACATE and REMAND to the district court for the suit to be

DISMISSED.

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