The opinion
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
Fifth Circuit
FOR THE FIFTH CIRCUIT FILED
_____________________ November 2, 2011
No. 08-31249 Lyle W. Cayce
_____________________ Clerk
BOBBY W SWINDLE, JR., As Administrators of the Estate of Morgan Taylor
Swindle; TRACY A SWINDLE, As Administrators of the Estate of Morgan
Taylor Swindle,
Plaintiffs - Appellants
v.
LIVINGSTON PARISH SCHOOL BOARD; RANDY POPE, Superintendent of
Livingston Parish School Board; PAUL PASTOREK; LOUISIANA
DEPARTMENT OF EDUCATION; STATE BOARD OF ELEMENTARY AND
SECONDARY EDUCATION,
Defendants - Appellees
__________________________
Appeal from the United States District Court for the
Middle District of Louisiana, Baton Rouge
__________________________
Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:
The court having been polled at the request of one of the members
of the court and a majority of the judges who are in regular active service
and not disqualified not having voted in favor (FED. R. App. P. and 5TH
CIR. R. 35), the Rehearing En Banc is DENIED.
Voting for en banc rehearing were: Chief Judge Edith H. Jones,
Judge E. Grady Jolly, Judge Jerry E. Smith, Judge Edith B. Clement, and
Judge Priscilla R. Owen. Voting against en banc rehearing were: Judge
Carolyn D. King, Judge W. Eugene Davis, Judge Emilio M. Garza, Judge
Fortunato P. Benavides, Judge Carl E. Stewart, Judge James L. Dennis,
Judge Edward C. Prado, Judge Jennifer W. Elrod, Judge Leslie H.
Southwick, Judge Catharina Haynes, and Judge James E. Graves.
Upon the filing of this order, the clerk shall issue the mandate
forthwith. See FED. R. App. P. 41(b).
ENTERED FOR THE COURT:
____________________________
JAMES L. DENNIS
UNITED STATES CIRCUIT JUDGE
No. 08-31249
JERRY E. SMITH, Circuit Judge, dissenting:
This case was lawyered poorly on both sides, but never mind: In an
exercise of raw advocacy for one party over another, this panel has come to
the rescue of Morgan Swindle, who was properly kicked out of school after
smoking dope, at the expense of Superintendent Randy Pope, who did nothing
wrong but is now personally on the line for money damages. This court, en
banc, recently awarded qualified immunity to a school official who boldly
violated the free exercise of religion by an elementary school student,1 but in
this case, in an opinion written by Judge Dennis and concurred in by Judges
Benavides and Elrod, a panel invents a claim that punishes a school official
who expelled a student who had abused drugs.
Partly as a result of the poor work done by the attorneys on both sides,
this panel reaches a new low, for this court, in terms of reviewing the record,
describing the claims, recognizing which issues are properly preserved for
review, and addressing whether the law was clearly established for purposes
of qualified immunity. The failure of the panel, at multiple levels, to do its
work with the precision and evenhandedness that the law requires means
that the en banc court should have stepped in to clear up the mess. I
respectfully dissent from the denial of rehearing en banc.
I. The Facts.
The relevant facts are simple and uncontested. Morgan Swindle, an
1
See Morgan v. Swanson, 2011 U.S. App. LEXIS 19656, at *147-*176 (5th Cir.
Sept. 27, 2011) (en banc) (Elrod, J., dissenting in regard to the grant of qualified immunity).
3
No. 08-31249
eighth grader, was expelled because she left a school dance with other
students and returned to the dance under the influence of marihuana. She
and her parents were advised that expulsion was recommended. She and her
mother were given a hearing. They were sent a written notification of
expulsion for a year. Although the notice told them they could file an
administrative appeal, the family knowingly declined to appeal.
Before the hearing, the Swindles requested “alternative education” for
Morgan if she were expelled. That request was denied without prior notice,
and there was no second hearing to address the denial of alternative
education.
Eventually, Morgan sought readmission as a ninth grader, but the
school refused, and Morgan returned to the eighth grade. The parents sued
for money damages under 42 U.S.C. § 1983.
II. The Record.
I now examine the record in the district court and this court. That
perusal consistently shows that as the district court’s opinion reflects, the
plaintiffs never articulated the claim on which the panel reverses. Inspection
of the record also indicates that plaintiffs did not adequately raise that issue
on appeal, so either the appeal should have been summarily dismissed or the
judgment should have been quickly affirmed.2
2
The panel, without explanation, took more than two years after oral argument to
issue its opinion. That is a disservice to the litigants and to the fair administration of
justice.
4
No. 08-31249
A. The Panel Opinion.
The panel opinion3 badly mischaracterizes the “due process claim” as
set forth in the complaint. The opinion raises a claim that the plaintiffs have
never madeSSnot in the complaint, not elsewhere in the district court, and
never on appeal or on rehearing. As the panel recognizes, the denial of
alternative educationSSa substantive rightSSis separate from the procedural
issue of whether that right was denied without notice and hearing. Although
plaintiffs spent many pages arguing the denial of the substantive right, they
never articulated the supposed procedural wrong, which is the failure to
provide notice and hearing.
Here are the panel’s inaccurate descriptions of the plaintiffs’ pleadings:
1. “. . . Plaintiffs’ procedural due process claim grounded on
Defendants’ denial, without proper notice and a fair hearing, of
the Swindles’ request that Morgan continue her public education
during her expulsion in an alternative education program.”4
2. “Morgan claims that she was entitled to predeprivation
notice and some kind of hearing, before a possibly erroneous
termination of her right to alternative education . . . .”5
3. “. . . Plaintiffs’ claims that Morgan was deprived of her
constitutional right to procedural due process when Defendants
denied her right under state law to continued public educational
benefits through an alternative education program without some
3
Swindle v. Livingston Parish Sch. Bd., 2011 U.S. App. LEXIS 18629 (5th Cir.
Sept. 8, 2011).
4
Id. at *3.
5
Id. at *18-*19.
5
No. 08-31249
kind of notice and some kind of hearing.”6
To the contrary, nowhere in this entire case do the plaintiffs ever even
mention lack of notice and hearing in regard to any procedural due process
claim involving denial of alternative education. The district and appellate
records are barren of any utterance of that concept. Although plaintiffs
assert the denial of a property right to alternative education, they have failed
to articulate (much less support with law and facts) any claim of deprivation
of procedural rights by denial of notice and hearing.7
B. The Complaint.
The complaint contains no mention of the “claim” that the panel
describes at least three times in its opinion (as quoted from the panel opinion
in items 1, 2, and 3 above). In ¶ 86, the complaint refers to the “Due Process
Clause of the Fourteenth Amendment” and the need “to follow the procedural
steps” adopted by a governmental body. It gives is no hint of notice and
hearing, despite citing Goss v. Lopez, 419 U.S. 565 (1975), which recognizes
that right. In ¶ 88, plaintiffs say only that their “due process rights . . . have
been violated,” without reference to notice and hearing. Same for ¶ 89. Same
for ¶ 90, containing a general reference to “due process rights.” In ¶¶ 93, 94,
6
Id. at *47-*48.
7
I cannot overstate how troubling it is that a panel would unabashedly misstate the
claims at least three times in its opinion. A reasonable reader would naturally assume that
plaintiffs had actually articulated a specific claim of deprivation of notice and hearing
regarding the denial of alternative education. Given this court’s well-deserved reputation
for precision and fair representation of district court records, the reader would normally
infer that the plaintiffs had at least uttered the words “notice and hearing,” but they did
not.
6
No. 08-31249
and 95, plaintiffs advert to the due process right to an education, and they
state that “such disciplinary action must be attended by due process . . . .”
But there is absolutely no claim of a violation of the right to notice and
hearing.8
Those are the only mentions of due process in the lengthy complaint.9
8
Plaintiffs were represented by counsel at all stages in the district court and on
appeal.
9
In this footnote, I set forth the entirety of the paragraphs of the complaint that I
have cited. As stated, they are the only references to procedural due process in the
complaint. Most of them do not relate in any way to any putative claim for denial of
procedural due process in the rejection of alternative education, but I include them here in
the interest of completeness:
¶ 86.
M.S.’s rights have been violated. Whiteside v. Kay, 446 F. Supp. 716, (W.D. La.
1978) the Court held:
When state law creates a right to public education, that right becomes
protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L.
Ed. 2d 725 (1975). Louisiana law creates a right to a public education. La.
R.S. 17:1, et seq. The suspension or expulsion of a child deprives the child of
property and liberty rights, as it may limit later opportunities for the child;
thus, such disciplinary action must be attended by due process safeguards.
Goss v. Lopez, supra.
A state or governmental body violates due process of law when it fails to
follow the procedural steps it has adopted for proceedings held before it.
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98
L. Ed. 681 (1954); Antonuk v. United States, 445 F.2d 592 (6th Cir. 1971);
Government of Canal Zone v. Brooks, 427 F.2d 346 (5th Cir. 1970). See Yellin
v. United States, 374 U.S. 109, 83 S. Ct. 1828, 10 L. Ed. 2d 778 (1963);
Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959);
Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957).
Here, the due process rights of M.S. have been violated by LPSB, BESE and
(continued...)
7
No. 08-31249
9
(...continued)
Louisiana Department of Education, State actors, granting a waiver of the right to alterna-
tive education and to have her home schooling recognized.
¶ 88.
The due process rights of M.S. have been violated when BESE and Louisiana
Department of Education denied M.S. the opportunity to be evaluated for placement after
home schooling.
¶ 89.
The due process rights of M.S. have been violated [sic] Louisiana Department of
Education as there has been no oversight of LPSB pursuant to La. Const. Art. VIII § 2,
which charges the State Superintendent of Education with implementation of policies of
BESE, and the implementation of the laws affecting LPSB.
¶ 90.
The due process rights of M.S. have been violated by BESE who pursuant to La.
Const. Art. VIII § 3 is charged with the supervision and control of the public elementary
and secondary schools.
¶ 93.
FIRST CLAIM FOR RELIEF
Pursuant to 42 USC § 1983, Plaintiff is entitled to damages for violations of her
right to public education, which are protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution in that the policies of the LPSB are contrary
to law and the BESE is failing to follow the law, oversight and enforcement and against
both for refusing to provide M.S. with an education.
¶ 94.
SECOND CLAIM FOR RELIEF
Plaintiffs seek relief under 42 USC § 1983 for violation in that the LPSB had a
policy or custom, that children expelled from LPSB were placed in the grade from which
they were expelled without offering alternative education and for refusing to recognize
home schooling which deprives the child of property and liberty rights, as it may limit later
opportunities for the child; thus, such disciplinary action must be attended by due process
[sic] the denial of the right to education was in contravention of law.
(continued...)
8
No. 08-31249
They center on the right to an education, but there is no articulation of the
procedural entitlement to pre-deprivation notice and hearing. The plaintiffs
have not pleaded or adequately explained the cause of action that the panel
imagines from whole cloth.
Where plaintiffs are represented by counsel, we do not and should not
accept, as adequate, bare references to “due process” or denial of
constitutional rights without some sort of specificity as to what the
defendants did that assertedly violated the Constitution. In this respect, the
complaint is inadequate as a matter of law, and by the usual standards of this
court, we likely would not accept it even if these plaintiffs were proceeding
pro se.
C. Opposition to Motions for Summary Judgment.
In their opposition to the motion for summary judgment, the plaintiffs
had a four-page section entitled “Violation of Constitution.” It mentions the
property interest in receiving a diploma, but there is no reference to, or claim
of, a procedural due process right to notice and hearing.
9
(...continued)
¶ 95.
THIRD CLAIM FOR RELIEF
Plaintiffs seek relief under 42 USC § 1983 for violation in that the BESE had a
constitutional and statutory duty to ensure that children expelled from LPSB received a
public education and BESE was aware that LPSB was violating state law by causing
children who were expelled to fail the grade by refusing to offer alternative education and
for refusing to recognize home schooling which deprives the child of property and liberty
rights, as it may limit later opportunities for the child; thus, such disciplinary action must
be attended by due process the denial of the right to education was in contravention of law.
9
No. 08-31249
D. District Court Opinion.
In its lengthy and excellent opinion granting summary judgment on
qualified immunity, the district court (Judge James Brady) made no reference
to any deprivation of notice and hearing in regard to the alleged denial of
alternative education. Under the caption “Entitlement to Alternative
Education,” the court stated, as a substantive due process claim, that
“plaintiffs also argue that Morgan had a property interest in receiving an
alternative education after she was expelled.” The court recognized that if
such property interest existed, “Morgan would indeed be entitled to due
process before being denied alternative education.” But the court never
referenced any specific articulation by plaintiffsSSand indeed there is
noneSSof a right to notice and hearing before any deprivation.10
E. Plaintiffs’ Opening and Reply Briefs on Appeal.
Even if, as a matter of notice pleading, the plaintiffs had adequately
described, in the district court, the procedural process claim that the panel
has manufactured, their more serious deficiency, for purposes of waiver, is
that their opening brief makes no mention of it. In the “Statement of Issues
Presented for Appeal,” plaintiffs list “Whether upon expulsion, Morgan
Swindle had a vested property interest in Alternative Education, and if so,
10
Thus it is easy to see that the plaintiffs never articulated or explained any
supposed right to notice and hearing on the denial of alternative education. Nor did the
district court think such a claim had been made. As Judge Elrod recently explained, “Our
well-established rule is that ‘arguments not raised before the district court are waived and
will not be considered on appeal.’” Morgan v. Swanson, 2011 U.S. App. LEXIS 19656, at
*128 (5th Cir. Sept. 27, 2011) (en banc) (Elrod, J., dissenting) (citing Celanese Corp. v.
Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010); French v. Allstate Indem. Co.,
637 F.3d 571, 582-83 (5th Cir. 2011)).
10
No. 08-31249
may such right be taken away in the absence of due process.” But the five
sub-items listed below that statement all involve the issuance of a waiver to
the school board and in no way touch on any due process right to notice and
hearing.
In the “Summary of Argument,” plaintiffs claim property rights and
state only that defendants “denied these rights in the absence of due process.”
In their “Argument” section, under “Procedural Due Process,” subheading
“Entitlement to Alternative Education,” the plaintiffs contend, at length, that
the school’s use of a waiver “violated Morgan’s property right to Alternative
Education.” There is no mention of notice and hearing. The only alleged
procedural violation is the use of the waiver by the school board in an effort to
avoid having to provide alternative education.11
The reply brief does not mention due process. It deals, instead, with a
separate res judicata issue.
11
This constitutes a total failure to raise and adequately brief the procedural due
process issue on appeal. Ironically, in regard to other issues that are not relevant here, the
panel concludes that “Plaintiffs have waived all of their other claims by failing to ade-
quately brief and argue them on appeal.” The panel adds a footnote:
The Federal Rules of Appellate Procedure require an appellant to present
in his brief his “contentions and reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” Fed. R.
App. P. 28(a)(9)(A). “A litigant’s failure to provide legal or factual analysis
results in waiver.” Nw. Enters. Inc. v. City of Houston, 352 F.3d 162, 183 n.24
(5th Cir. 2003); see also Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th
Cir. 2007) (stating that the court will not “consider issues that are not
adequately briefed” in the appellant’s brief, even if the appellant attempts to
incorporate by reference arguments made elsewhere).
Swindle, 2011 U.S. App. LEXIS 18629, at 15 n.4. That is an accurate statement of the gov-
erning standard that this panel, inconsistently, declines to apply to the only issue on which
it reverses the district court.
11
No. 08-31249
In summary, the plaintiffs have fallen far short of what we and the
federal appellate rules require an appellant to do to raise an issue adequately
for review on appeal. Especially in counseled cases, we do not allow an
appellant merely to state, in the brief, general terms such as “due process” or
“constitutional violation” without supporting explanation and argument. In
regard to procedural due process, these plaintiffs have never told us or the
district court what it is that a school official failed to do. Only the judges on
this panel have made that claim on behalf of the plaintiffs: the alleged failure
to provide a hearing on the denial of alternative education.
III. Qualified Immunity.
The panel correctly affirmed most of Judge Brady’s summary judgment
on the ground that all the issues save one were inadequately briefed and
therefore are waived. The error, however, is in the panel’s reversal of
summary judgment in favor of the school board and Superintendent Randy
Pope regarding what the panel saw as the “procedural due process claim
grounded on Defendants’ denial, without proper notice and a fair hearing, of
the Swindles’ request [for] alternative education.” The panel spends many
pages analyzing this unpleaded, unargued claim. The panel’s conclusion can
be summarized in the following excerpts from its opinion:
. . . [C]ontrary to the conclusion of the district court, we
conclude that Louisiana’s statutory scheme provided Morgan an
entitlement to receive alternative education during her expulsion,
i.e., Morgan had a property interest in continued alternative
education of which she could not be deprived without due process.
12
No. 08-31249
[12]. . . [A] right or status previously recognized by state law and
vested in Morgan was distinctly altered or extinguished. This
alteration, officially removing Morgan’s interest from the
recognition and protection previously afforded by the state, was
sufficient to invoke the procedural guarantees contained in the
Due Process Clause of the Fourteenth Amendment.[13]
The panel thus denies qualified immunity. Even assuming arguendo
that plaintiffs have adequately pleaded and raised the issue on appeal, that
part of the opinion is error as a matter of qualified immunity law and puts
this superintendent in jeopardy for an objectively reasonable, good-faith
decision.
In his petition for rehearing, the superintendent accurately focuses on
the fact that there was no clearly established law that guaranteed Morgan
the right to a second due-process hearing under the unique facts of this case.
It is undisputed that Morgan received a full, fair, and constitutionally
adequate hearing on her initial expulsion. Importantly, by that time, she had
already requested that, if the tentative expulsion decision was not over-
turned, she wanted to be assigned to alternative education. That easily could
have been raised at the hearing but was not. Moreover, it is undisputed that
the parents were advised that they could administratively appeal the result of
the hearing that was conducted. It is also uncontroverted that they decided
not to pursue that opportunity.
It follows that an objectively reasonable person in the superintendent’s
shoes would have concluded that no further hearing was required once
12
Swindle, 2011 U.S. App. LEXIS 18629, at *23.
13
Id. at *30.
13
No. 08-31249
Morgan was advised that she was being denied alternative education.
Moreover, nothing in the record or the briefs indicates that Morgan requested
such a hearing or that it would have made a difference. As the
superintendent explains in his rehearing petition,
If asked in 2005 whether a student must be provided with a due
process hearing before being denied placement in an alternative
education setting after having already been provided a due
process hearing before expulsion, it is highly doubtful that other
superintendents in this state would agree with this Court’s
finding that such a second hearing was required.
In regard to the facts and law available to the superintendent when the
hearing was held, moreover, his rehearing petition points out that “the School
Board did not have an alternative education program in 2005, waivers [of the
state requirement to provide alternative education] could be sought and
granted even after the [state education department’s] deadline, and a
subsequent waiver sought by the School Board in 2006 was granted.”
Although Judge Dennis’s opinion does not explicitly say that a second
hearing was required, a fair reading is that it was objectively unreasonable
for the superintendent either to fail to offer a second hearing or to fail to
combine, into one hearing, the issues of expulsion and alternative education.
But given that the plaintiffs had already requested alternative education
before the hearing was held on the expulsion, there is nothing in the “clearly
established law”SSand the panel members have pointed to noneSSthat would
have alerted the superintendent that the hearing that was held, regarding
Morgan’s serious misconduct and what was to be done about it, was
constitutionally inadequate. And it is uncontested that the family was told of
14
No. 08-31249
the right to an administrative appeal, at which presumably the alternative-
education issue could have been raised. The plaintiffs acknowledge that they
declined the chance to appeal.
A further fault in the qualified-immunity ruling is that even if the issue
had been adequately pleaded and briefed, the panel exposes a school official
to liability in a novel context in which the plaintiffs had additional remedies
before the school board but consciously elected not to pursue them. This
complex stew yielded no “clearly established law” such that “every reasonable
principal” would have conducted a different or additional due process
hearing.14
In summary, qualified immunity depends on whether it was objectively
unreasonable for the superintendent to fail explicitly to provide a hearing on
alternative education. That naturally depends on whether it was clearly
established that it was required in this “unique” circumstance, given that
(1) plaintiffs concede that there was a constitutionally adequate
hearing on the expulsion;
(2) the request for alternative education was made before that
hearing and easily could have been raised by plaintiffs at the
hearing or at a further hearing on appeal;
(3) plaintiffs admit that they were advised of the right to an
administrative appeal of the result of the hearing but knowingly
declined to exercise that right; and
14
See Browning v. City of Odessa, 990 F.2d 842, 845, n.7 (5th Cir. 1993); Rathjen v.
Litchfield, 878 F.2d 836, 839-40 (5th Cir. 1989); Myrick v. City of Dallas, 810 F.2d 1382,
1388 (5th Cir. 1987) (all holding that no procedural due process claim may be made where a
plaintiff failed to utilize an available remedy).
15
No. 08-31249
(4) there was uncertainty on the part of the administrators as to
whether the school district needed to obtain an additional state
waiver before denying alternative education or could obtain a
retroactive waiver, in light of the fact that waivers had been
easily available in past years.
That is what qualified immunity is all aboutSSgranting exoneration to
public officials where no caselaw can be reasonably interpreted to have
spoken to the specific situation at hand. This school official acted reasonably
and did not contravene any clearly established law. The panel’s denial of
qualified immunity is serious error.
IV. Conclusion.
With all due respect, this panel has gone too far in manufacturing a
cause of action for procedural due process that the plaintiffs, through counsel,
never presented. The panel’s thricefold description of plaintiffs’ claim is, at
the very least, a highly misleading representation of what the plaintiffs
actually pleaded. The reversal of summary judgment as to Superintendent
Pope is badly flawed at three levels: (1) Procedural due process was not
adequately pleaded; (2) it was not properly raised as an issue on appeal; and
(3) the opinion is substantively wrong as a matter of qualified immunity law.
This matter is enbancworthy because the panel’s published,
precedential opinion sends confusing signals as to what this court expects a
plaintiff to plead and to raise on appeal regarding due process. The opinion
confounds the law of qualified immunity by expecting next-to-impossible
prescience as to what a randomly chosen panel of this court might expect a
school official to doSSin order to avoid personal monetary liabilitySSin a
16
No. 08-31249
complex situation to which no court has even remotely spoken. In light of the
panel’s failure to fix this matter in response to the petition for rehearing, it is
up to the en banc court to do so.
In fairness to those judges who have voted against rehearing, however,
I acknowledge that this matter is not ideally suited for en banc review. The
school district’s attorneys made the error of requesting only panel rehearing,
making it less likely that the matter would attract the full attention of the
en banc court.
It is also true that many of the panel’s errors are hidden from a mere
superficial reading of the panel opinion. The district’s lawyers did not seem
to notice that the alleged due process violation was never pleaded and was
not adequately and explicitly raised in the plaintiffs’ briefs. Although the
panel judges, during their two years of deliberations, still should have made
the sort of sua sponte examination of the complaint that I have undertaken,
in fairness to the panel it is somewhat understandable that, in the absence of
that inquiry, the panel missed the inadequacies in the pleadings. The panel
opinion therefore does not discuss the pleadings. For that reason, some of the
judges may feel that the panel opinion, though erroneous, does not do as
much harm to our jurisprudence as would merit en banc review, given that
some of the errors are not evident from the face of the opinion without careful
review of the briefs and the record.
There was an easy way for the panel or the en banc court to fix this
matter. Even assuming arguendo that the district court pleadings are
adequate (under the notice-pleading standard) to allege denial of notice and
hearing on the denial of alternative education, that issue is not adequately or
17
No. 08-31249
properly raised in plaintiffs’ opening brief under Rule 28(a)(9)(A). See supra
note 11. Under that standard, which this court customarily applies,15 the
appeal should have been dismissed for failure to prosecute. Then this matter
would be at an end, and the damage the panel has done to our qualified-
immunity jurisprudence would be undone.
The panel opinion is a shameless exercise in appellate advocacy on
behalf of an undeserving party at the expense of a well-intentioned school
official who has done no wrong. I respectfully dissent from the denial of
rehearing en banc.
15
A quick LEXIS search produces more than 600 Fifth Circuit cases citing Rule
28(a), Rule 28(a)(9), or Rule 28(a)(9)(A).
18