# Pierre v. Vasquez

> Court of Appeals for the Fifth Circuit · January 6, 2022

URL: https://www.frixlaw.com/law-library/cases/5283771

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 6, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5283771

## How later opinions describe it (automated extraction)

- recognizing that “reputational harms” qualify as “concrete” injuries

## Opinion text

Case: 20-51032 Document: 00516157111 Page: 1 Date Filed: 01/06/2022

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
January 6, 2022
No. 20-51032
Lyle W. Cayce
Clerk
Lyndon MiJoseph Pierre,

Plaintiff—Appellant,

versus

Sheila Vasquez, in her Official Capacity as Manager of
the Texas Department of Public Safety-Sex Offender
Registration Bureau; Texas Department of Public
Safety; Steven McCraw, in his Official Capacity as
Director of the Texas Department of Public Safety,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-224

Before Davis, Elrod, and Oldham, Circuit Judges.
W. Eugene Davis, Circuit Judge:*
Lyndon MiJoseph Pierre appeals the district court’s summary
judgment in favor of defendants-appellants Sheila Vasquez and Steven

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
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No. 20-51032

McCraw, representatives of the Texas Department of Public Safety,
dismissing his claims under 42 U.S.C. § 1983 seeking to enjoin defendants
from requiring him to register as a sex offender. The district court concluded
that Pierre failed to sufficiently allege an injury, and therefore lacked
standing. Because the reputational damage to Pierre from being required to
register as a sex offender constitutes injury, we REVERSE and REMAND.
I. BACKGROUND
In September 2015, a federal grand jury empaneled in the District of
Arizona indicted Lyndon MiJoseph Pierre under two counts: (1) knowingly
attempting to transport an individual from Arizona to Texas to engage in
prostitution, in violation of 18 U.S.C. § 2421, and (2) knowingly attempting
to persuade, induce, entice, or coerce an individual to travel from Arizona to
Texas to engage in prostitution, in violation of 18 U.S.C. § 2422(a).
Pierre thereafter entered into a plea agreement with the federal
Government. In this agreement, Pierre agreed to plead guilty to the first
count, and the Government agreed to dismiss the second at sentencing.
Consistent with the agreement, Pierre pled guilty to count one. The district
court accepted the plea, entered a judgment of conviction on the § 2421
charge, and dismissed count two. The court sentenced Pierre to 16 months
in prison and three years of supervised release. Although Pierre’s supervised
release came with many conditions, he was not required to register as a “sex
offender” under the Sex Offender Registration and Notification Act
(“SORNA”).1
After Pierre completed his term of imprisonment, and while serving
his term of supervised release, Pierre’s federal supervision officer asked the

1
34 U.S.C. § 20901, et seq.

2
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Texas Sex Offender Registration Bureau (“SORB”), a division of the Texas
Department of Public Safety (“DPS”), whether Pierre was required to
register as a sex offender. In an email response, SORB indicated that Pierre’s
conviction under § 2421 “is not substantially similar to a Texas reportable
conviction or adjudication,” but that he would nevertheless be required to
register as an “extrajurisdictional” registrant for a period of 15 years.
On January 30, 2020, Pierre filed this lawsuit in the 345th Judicial
District Court of Travis County, Texas, challenging this registration
requirement. Pierre sued three defendants: Sheila Vazquez, the manager of
SORB, Steven McCraw, the director of DPS, and DPS itself. Pierre alleged
that the defendants violated his right to procedural due process under the
Fourteenth Amendment by failing to provide him with notice and an
opportunity to be heard before determining that he is required to register as
a sex offender. He asked the court for declaratory and injunctive relief
prohibiting defendants from classifying him as a sex offender.
Defendants removed the case to federal district court on the basis of
federal question jurisdiction. Vasquez and McCraw moved to dismiss,
arguing that Pierre was not entitled to notice and an opportunity to be heard
because he had been convicted of a “sex offense,” and had therefore received
all the process he was due. The DPS separately moved to dismiss on the
ground that it is a state agency and therefore immune under the Eleventh
Amendment. The district court notified the parties that it would be
converting the defendants’ motions to dismiss into motions for summary
judgment, and that they could file additional materials. Neither plaintiff nor
any of the defendants filed anything further.

3
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The district court dismissed Pierre’s claim against DPS because it was
entitled to sovereign immunity.2 As to Pierre’s claims against Vasquez and
McCraw, the district court concluded that Pierre lacked standing because he
failed to show an injury that is legally cognizable under the Due Process
Clause. The court granted summary judgment in defendants’ favor for all
federal claims, and dismissed the claims. Pierre moved for a new trial or to
alter or amend the judgment, but the district court denied his motion. Pierre
timely appealed.
II. DISCUSSION
The basis for the district court’s dismissal of Pierre’s claims against
Vasquez and McCraw was its conclusion that Pierre lacked standing to assert
his federal claims. We consider questions of standing de novo.3
Article III of the Constitution limits federal jurisdiction to cases or
controversies.4 To satisfy this requirement, a plaintiff must have standing,
i.e., a “personal stake,” in the suit he or she commences.5 The Supreme
Court has established a three-part test for standing: “(i) that [the plaintiff]
suffered an injury in fact that is concrete, particularized, and actual or
imminent; (ii) that the injury was likely caused by the defendant; and (iii) that
the injury would likely be redressed by judicial relief.”6

2
In his brief, plaintiff specifically states that he is not challenging the district
court’s decision to dismiss DPS.
3
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 190 (5th Cir. 2012).
4
U.S. Const. art. III, § 2.
5
See Davis v. Fed. Election Comm’n, 554 U.S. 724, 732-33 (2008).
6
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992)).

4
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The district court “confine[d] its analysis” to the first element of
standing, “whether Pierre has suffered an injury in fact,” and ultimately
determined that “current law does not recognize [Pierre’s] injury.” But the
district court erroneously conflated the merits of Pierre’s claims with the
initial standing inquiry. To succeed on the merits, Pierre must show that the
State interfered with his “liberty interest.”7 Although couched as part of its
standing analysis, the district court found that, because Pierre had been
convicted of a “sexual offense,” he could show no deprivation of a liberty
interest.
However, the Supreme Court has instructed that “standing in no way
depends on the merits of the plaintiff’s” claims.8 To be sure, there are cases
in which jurisdictional issues are inextricably “intertwined” with the merits,
and a court must reach the merits to determine jurisdiction.9 But this is not
such a case. This Court has previously held that, even if a plaintiff’s “stake
does not rise to the level of a liberty interest,” it may be “enough to satisfy
the injury-in-fact requirement of standing.”10 In Sims v. Young, a municipal
employee sued the City of Fort Lauderdale after it suspended his
employment for criticizing the City in a newspaper article.11 This Court

7
Procedural due process claims are evaluated under a two-step analysis:
(1) “whether there exists a liberty or property interest which has been interfered with by
the State;” and (2) “whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010) (citing
Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).
8
Warth v. Seldin, 422 U.S. 490, 500 (1975) (citing Flast v. Cohen, 392 U.S. 83, 99
(1968)).
9
Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct.
1312, 1319 (2017).
10
Sims v. Young, 556 F.2d 732, 734 (5th Cir. 1977).
11
Id. at 733.

5
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found that the “blot on [the plaintiff’s] record” created by the suspension
was a sufficient injury for standing, regardless of whether the plaintiff would
ultimately succeed on the merits.12
Like the “blot” in Sims, the reputational harm associated with
registering as a sex offender is adequate to support standing, even if it is
ultimately an insufficient basis for a “liberty interest.”13 Thus, the district
court erred when it found that Pierre lacked standing because, in its view, he
could not identify a “liberty interest.”
Instead of inquiring as to whether Pierre could identify a “liberty
interest,” the relevant question is whether plaintiff’s alleged injury is
“concrete,” “particularized,” and “actual or imminent.”14 In this lawsuit,
Pierre challenges defendants’ action requiring him to register as a “sex
offender”—a designation he contends is false. At a minimum, the
defendants’ action subjects Pierre to the damaging reputational
consequences15 of bearing the sex offender label. The Supreme Court has
expressly recognized that reputational harm is a “concrete” form of injury to
support standing,16 and in this case, the harm is plainly “particularized” to
Pierre.17 Moreover, the injury is “imminent” because defendants have

12
Id. at 734.
13
Id.
14
TransUnion, 141 S. Ct. at 2203.
15
See Coleman v. Dretke, 409 F.3d 665, 668 (5th Cir. 2005) (“Coleman II”) (noting
the “adverse social consequences” caused when a state labels an individual as a “sex
offender”).
16
TransUnion, 141 S. Ct. at 2204 (recognizing that “reputational harms” qualify
as “concrete” injuries) (citing Meese v. Keene, 481 U.S. 465 (1987)).
17
Lujan, 504 U.S. at 560 & n. 1 (“[P]articularized . . . mean[s] that the injury must
affect the plaintiff in a personal and individual way.”).

6
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indicated throughout this litigation that they remain firm in their effort to
require Pierre to register.18 In short, Pierre has a sufficient “personal stake”
in this litigation to satisfy the injury-in-fact requirement of standing.
In sum, we conclude the district court erred in finding no standing
based on its conclusion that Pierre alleged no injury. We therefore REVERSE
the district court’s decision to the contrary and REMAND for further
proceedings consistent with this opinion. On remand, the district court must
consider the merits of Pierre’s procedural due process claim, including
whether Pierre’s conviction under § 2421 was a “sex offense” under federal
or state law such that Texas could treat him as an “extrajurisdictional
registrant.”19

18
Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir. 2019) (“For a threatened future
injury to satisfy the imminence requirement, there must be at least a ‘substantial risk’ that
the injury will occur.”) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014)).
19
Tex. Code Crim. Proc. art. 62.001(10).

7
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Andrew S. Oldham, Circuit Judge, concurring in the judgment in part:
The standing question in this case is easy: Pierre suffered an injury-in-
fact by having to register as a sex offender; that injury is traceable to Texas’s
determination that he must register; and it’s redressable by a court order
telling Texas they can’t make him register. Open and shut.
More interesting is the district court’s conflation of standing and the
merits. The district court appeared to think (as did the State at oral
argument) that Pierre does not have standing because his Due Process claim
fails on the merits. See Pierre v. Vasquez, 2020 WL 6064622, at *5–*6 (W.D.
Tex. Oct. 14, 2020) (“Pierre cannot show a deprivation of a protected liberty
interest” because he was convicted of a sex offense and already “received
due process”); see also id. at *4–*6 (conflating injury-in-fact with whether
Pierre’s Fourteenth Amendment claims succeed on the merits). The district
court then dismissed Pierre’s Fourteenth Amendment claims with
prejudice—the appropriate disposition only if the court reached the merits—
because “Pierre lacks standing.” Id. at *6–7 (emphasis added); see 9
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2373, at 756–57 (3d ed. 2008)
(jurisdictional dismissals are without prejudice). Compounding the
jurisdiction-versus-merits confusion, the State told us at argument that we
should resolve both issues. See Oral Arg. at 17:45–17:55 (State’s argument
that “both the merits and this question [of standing] are before the court”).
This is all wrong for two reasons. First, the district court confused two
distinct concepts—standing and the merits—as explained in cases too
numerous to cite. See, e.g., Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n, 576 U.S. 787, 800 (2015) (quoting Davis v. United States, 564 U.S.
229, 249 n.10 (2011)) (emphasizing that “one must not confus[e] weakness
on the merits with absence of Article III standing”); ASARCO Inc. v. Kadish,
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490 U.S. 605, 624 (1989) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975))
(holding “federal standing . . . in no way depends on the merits of the
claim”). Indeed, we’ve even explained this distinction in the context of sex
offenders’ constitutional claims. See, e.g., Duarte ex rel. Duarte v. City of
Lewisville, 759 F.3d 514, 520 (5th Cir. 2014) (“[T]he district court
erroneously granted summary judgment for lack of standing because it
conflated the actual-injury inquiry for standing purposes with the underlying
merits of the Duartes’ constitutional claims.”). Unless Pierre’s claims were
so patently frivolous that they triggered dismissal under Bell v. Hood, their
merits vel non are irrelevant to federal jurisdiction. See 327 U.S. 678, 682
(1946) (“Jurisdiction . . . is not defeated . . . by the possibility that the
averments might fail to state a cause of action on which petitioners could
actually recover. For it is well settled that the failure to state a proper cause
of action calls for a judgment on the merits and not for a dismissal for want of
jurisdiction.”); id. at 682–83 (noting a claim that’s “wholly insubstantial and
frivolous” might be dismissable for lack of jurisdiction).
Second, far from frivolous, Pierre’s claims are meritorious. The State
conceded at oral argument that forcing someone to register for a non-
registrable offense is a Due Process violation. See Oral Arg. at 20:30–20:40
(Q: “Registering if you’re not supposed to register is a Due Process
violation?” Counsel for Texas: “Certainly.”). This concession accords with
our precedent. See Coleman v. Dretke, 395 F.3d 216, 222 (5th Cir. 2004)
(individuals who have not been convicted of a sex offense have a protectable
Due Process interest in “freedom from sex offender classification and
conditions”). Thus, it’s undisputed that the State violated the Constitution
if it ordered Pierre to register for a non-registrable offense.
Pierre committed a non-registrable offense, and it’s not a close
question. Specifically, Pierre pleaded guilty to a prostitution offense in a
federal district court in Arizona. Texas law says such extrajurisdictional

9
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offenses are registrable in Texas if they’re registrable under federal law. See
Tex. Code Crim. Pro. art. 62.001(10)(A)(ii). And it’s undisputed that
Pierre’s prostitution offense was non-registrable under federal law.1
And in any event, if there were any doubts on this score, they’d be
resolved by looking at the judgment of conviction entered by the Arizona
district court. That’s because, if Pierre’s prostitution offense were
registrable under federal law, the Sex Offender Registration and Notification
Act (“SORNA”) would’ve required the Arizona court to so specify in its
supervised-release conditions. See 18 U.S.C. § 3583(d) (“The court shall
order, as an explicit condition of supervised release for a person required to
register under [SORNA], that the person comply with the requirements of
that Act.”). Here, the Arizona district court imposed numerous conditions
on Pierre’s supervised release, but it did not require him to register under
SORNA. See Pierre, 2020 WL 6064622, at *2. And the State concedes that

1
Pierre pleaded guilty to knowingly attempting to transport an individual from
Arizona to Texas to engage in prostitution, in violation of 18 U.S.C. § 2421. He admitted
that he “met a person who [he] believed to be an adult woman” and “attempted to
transport [her] from Mesa, Arizona to Houston, Texas with the intent that [she] engage in
prostitution.” ROA.247. That crime falls under SORNA’s broad definition of “sex
offense,” making Pierre a “sex offender” unless he qualifies for an exemption. See 34
U.S.C. § 20911(1) (defining “sex offender” as “an individual who was convicted of a sex
offense”); id. § 20911(5)(A) (defining “sex offense” as, among other things, “a Federal
offense” under chapter 117 of Title 18); see also 18 U.S.C. § 2421 (the offense for which
Pierre was convicted is an offense under chapter 117 of Title 18). SORNA exempts from
the definition of “sex offense,” however, certain offenses involving consensual sexual
conduct. See 34 U.S.C. § 20911(5)(C) (“An offense involving consensual sexual conduct is
not a sex offense for the purposes of this subchapter if the victim was an adult, unless the
adult was under the custodial authority of the offender at the time of the offense, or if the
victim was at least 13 years old and the offender was not more than 4 years older than the
victim.” (emphasis added)). Pierre attempted to transport an adult for prostitution, and no
element of his crime constituted non-consensual conduct. So his offense falls under the
exemption, meaning federal law does not require him to register. The State filed a six-page
brief in our court that disputed none of this.

10
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the Arizona district court had no obligation to impose a SORNA registration
requirement. See Oral Arg. at 26:20–26:31 (Q: “Is your position that the
District of Arizona, in sentencing your friend on the other side, violated
federal law by failing to order in the supervised release conditions that you
have to register?” Counsel for Texas: “No.”). Thus, it’s beyond cavil that
federal law imposes no registration requirement for Pierre’s offense.
The State responds that SORNA provides only minimum standards
for sex-offender registration, and Texas could impose additional registration
obligations over and above those imposed by federal law. That’s
undisputedly true. It’s also irrelevant because Texas hasn’t imposed
additional obligations. Under SORNA, Pierre does not need to register; the
State nonetheless ordered him to register; and the State concedes that
ordering someone to register for a non-registrable offense is a violation of the
Due Process Clause. That’s the end of this case. I’d reverse and render
judgment in Pierre’s favor.

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5283771. Public record. Not legal advice.