“It has long been the rule in this circuit that any issues not briefed on appeal are waived.”
How later courts described this case
- “It has long been the rule in this circuit that any issues not briefed on appeal are waived.”
Written by the judges who cited it.
The opinion
Case: 22-40160 Document: 00516490743 Page: 1 Date Filed: 09/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2022
No. 22-40160
Summary Calendar Lyle W. Cayce
Clerk
Judy D. Brown,
Plaintiff—Appellant,
versus
Alixa-RX; Lorraine Dyer; Kelly Simpson,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:21-CV-284
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Plaintiff Judy Brown (“Brown”) sued her former employer, Alixa-RX,
and two Alixa-RX supervisors—Lorraine Dyer and Kelly Simpson
(collectively, “Defendants”). In her amended complaint, she alleged four
claims: 1) violation of company policies and rules; 2) fraudulent inducement
*
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opinion should not be published and is not precedent except under the limited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.
Case: 22-40160 Document: 00516490743 Page: 2 Date Filed: 09/30/2022
No. 22-40160
of employment; 3) hostile work environment; and 4) violation of Texas Penal
Code § 37.09. After Defendants filed a motion to dismiss her amended
complaint, Brown filed a second amended complaint. Defendants then filed
a motion to strike her second amended complaint. The district court granted
both of Defendants’ motions, and Brown now appeals from the judgment.
We AFFIRM.
BACKGROUND
In October 2020, Brown started working for Alixa-RX as a Collections
Specialist. On March 19, 2021, Brown filed her original pro se complaint
against Defendants in the 219th District Court in Collin County, Texas. Soon
after, Defendants removed the case to the Eastern District of Texas, and
Brown resigned from her position at Alixa-RX. On April 14, 2021, Brown
filed her first amended complaint alleging the four claims listed above. The
following week, Defendants filed a motion to dismiss Brown’s first amended
complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure.
On May 17, 2021, the district court 1 entered its scheduling order
which, in relevant part, gave Brown an August 6, 2021 deadline for filing
amended pleadings and stated that a motion for leave to amend is required.
On July 27, 2021, Brown sent Defendants’ counsel an email notifying them
of her intent to file two motions: “one to extend the date for [her] amended
complaint and the [second] that if the case is dismissed that it be dismissed
without prejudice.” Defendants did not oppose Brown’s request to extend
her amended pleading deadline to September 6, 2021 but opposed her
request regarding dismissal without prejudice. Two days later, Brown
1
This matter was referred to a magistrate judge who entered the scheduling order
and ultimately submitted a report and recommendation to the district judge. “District
court” refers to both the magistrate judge and district judge assigned to this case.
2
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No. 22-40160
submitted a motion asking for dismissal without prejudice should the case be
dismissed and “that the deadline for her Amended Complaint be extended
to September 6, 2021, which has been approved by the Defendants.” While
her motion was still pending, Brown filed a second amended complaint on
August 17, 2021 without seeking leave of court. Defendants moved to strike
Brown’s second amended complaint for violating Federal Rule of Civil
Procedure 15 and the court’s scheduling order.
On February 14, 2022, the magistrate judge submitted a report
recommending that Defendants’ motion to dismiss and motion to strike
Brown’s second amended complaint be granted. Brown timely filed
objections. The district judge reviewed the magistrate judge’s report and
Brown’s objections, and, after conducting its own de novo review, adopted
the magistrate judge’s report as the findings and conclusions of the court and
granted both of Defendants’ motions.
Brown now files this pro se appeal challenging the district court’s grant
of Defendants’ motion to strike her second amended complaint as well as the
dismissal of some of her claims.
STANDARD OF REVIEW
Ordinarily, when a party fails to object to an issue in a magistrate
judge’s report and recommendation after being warned of the requirement to
file timely objections, we review that issue for plain-error on appeal. See
Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 248 (5th Cir.
2017). When, however, the district court undertakes an independent review
of the record as it did here, we review the issues de novo despite any lack of
objection. See id. “This exception to the usual plain-error standard is
especially relevant in the context of pro se cases.” Id. at 248-49 (citing Fogarty
v. USA Truck, Inc., 242 F. App’x 152, 154 (5th Cir. 2007) (unpublished)).
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Therefore, we review the district court’s dismissal for lack of
jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule
12(b)(6) de novo. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001) (per curiam). When a party files multiple Rule 12 motions, we must
consider the Rule 12(b)(1) jurisdictional attack before considering the Rule
12(b)(6) merits challenge. See id. The party responding to the 12(b)(1) motion
bears the burden of proof that subject matter jurisdiction exists. See id. For a
Rule 12(b)(6) dismissal, we look to the allegations in the complaint and
attached documents to determine whether the complaint contains
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Stratta v. Roe, 961 F.3d 340, 349 (5th Cir. 2020). A
claim is plausible on its face if “the pleaded factual content allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 349−50 (quotations omitted).
We review the grant of a motion to strike for abuse of discretion. See
Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir. 2007).
DISCUSSION
We first address Brown’s hostile work environment claim based on
alleged violations of Medicaid rules since the district court dismissed it on
jurisdictional grounds. In issue six, Brown claims the district court erred in
assuming Brown intended to assert her hostile work environment claim
under federal employment law. Brown did not clearly state the statutory basis
for her hostile work environment claim, so the district court analyzed it under
Title VII. The district court concluded that Brown’s hostile work
environment claim could not proceed for several reasons: 1) Brown had not
first exhausted her administrative remedies; 2) she cannot seek individual
liability against her former supervisors for hostile work environment; and 3)
she failed to state a claim since she had not identified her membership in a
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No. 22-40160
protected class. Brown now disavows that her hostile work environment
claim is brought under federal employment law. Instead, she states that the
basis for her hostile work environment claim was her “calling Medicaid
patients for money and the response she got when she made those calls.”
However, the district court also addressed this contention that alleged
violations of Medicaid rules could give rise to a hostile work environment
claim. Brown cited no authority that employees have standing to bring claims
based on their employer’s alleged violation of Medicaid rules under either
state or federal law, and the district court found none. Accordingly, “[t]o the
extent [Brown’s] hostile work environment claim arises from alleged
Medicaid violations Defendants asked her to commit as an employee,” the
district court dismissed the claim for lack of jurisdiction. That conclusion is
correct because neither the Medicaid Act nor the Medicare Act provide a
private cause of action against private providers of services. See Scott v. Pfizer
Inc., 182 F. App’x 312, 315–16 (5th Cir. 2006) (unpublished) (per curiam). 2
We now turn to the district court’s grant of Defendants’ motion to
strike. In issue one, Brown asserts that the district court “erred in using a
Local Rule to trump a Federal Rule in dismissing the complaint.” Brown
claims she received written consent from Defendants’ counsel to amend her
pleading thereby satisfying the requirements of the federal rule. See Fed. R.
Civ. P. 15(a)(2) (“In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave.”). But she did
not receive written consent from Defendants’ counsel to amend her pleading.
Defendants only agreed not to oppose her request to extend the deadline for
filing her amended complaint. Brown’s submission of her second amended
2
Although an unpublished opinion issued on or after January 1, 1996 is generally
not precedential, it may be considered as persuasive authority. See Ballard v. Burton, 444
F.3d 391, 401 & n.7 (5th Cir. 2006).
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No. 22-40160
complaint did not comply with the federal rule or the court’s scheduling
order, so the district court did not abuse its discretion when it struck the
complaint.
In issues two, three, and four, Brown claims the district court failed to
review certain documents, her response to Defendants’ motion to dismiss,
and the case law she submitted in support of her complaint. “The court’s
review is limited to the complaint, any documents attached to the complaint,
and any documents attached to the motion to dismiss that are central to the
claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Some of the
documents Brown refers to in issues two, three, and four were not attached
to her complaint, so they were not properly before the district court in its
consideration of Defendants’ motion to dismiss. Besides that, the district
court clearly reviewed the content of her complaint, the exhibits attached to
it, and Brown’s response to Defendants’ motion to dismiss. Accordingly,
each of these issues are without merit.
In issue five, Brown challenges the dismissal of her claim that
Defendants violated portions of Alixa-RX’s Rules and Procedures manual.
After surveying Texas courts and sister courts addressing the issue, the
district court found that an employee has no cause of action against her
employer for a violation of the company’s policies under Texas law. We
agree—Texas courts have not recognized a private cause of action for a
company’s failure to follow its own internal policies or procedures. See, e.g.,
Fort Worth Transp. Auth. v. Thomas, 303 S.W.3d 850, 859 n.17 (Tex. App.—
Fort Worth 2009, pet. denied) (“[A]s a general rule, employee handbooks
and policy manuals constitute general guidelines in the employment
relationship and do not create implied contracts between the employer and
employee that alter the at-will employment relationship.”); Washington v.
Naylor Indus. Servs., Inc., 893 S.W.2d 309, 312 (Tex.App.—Houston [1st
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No. 22-40160
Dist.] 1995, no writ) (holding that a company’s internal policies do not
constitute a contract with its at-will employee). The district court correctly
dismissed this claim.
Brown did not raise her claims for fraudulent inducement of
employment or violation of Texas Penal Code § 37.09 on appeal, so those
issues are waived. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000) (“It has long been the rule in this circuit that any issues not briefed on
appeal are waived.”). In Brown’s remaining issues on appeal, she raises new
claims about violations of the American Bar Association’s Model Rules of
Professional Conduct, the Texas Disciplinary Rules of Professional Conduct,
whistleblower laws, the False Claims Act, and Minnesota law. Because
Brown raised these for the first time on appeal instead of before the district
court, we need not consider them. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
For these reasons, we AFFIRM the district court.
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