Rogers v. Jarrett

Case: 21-20200 Document: 00516695420 Page: 1 Date Filed: 03/30/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

March 30, 2023

No. 21-20200

Lyle W. Cayce

Clerk

Kevion Rogers,

Plaintiff—Appellant,

versus

Jeffrey Jarrett; Jeremy Bridges; Texas Department of

Criminal Justice,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-2330

Before Richman, Chief Judge, and Wiener and Willett, Circuit

Judges.

Don R. Willett, Circuit Judge:

A trusted prison inmate was working unsupervised in a hog barn when

the ceiling collapsed, striking him in the head. He told the prison agricultural

specialist that he needed medical attention. But the specialist thought the

inmate looked no worse for wear and ordered him back to work. A short while

later, the inmate asked another prison staffer for medical attention. The

staffer radioed a supervisor. Based on the staffer’s report, the supervisor, too,

thought nothing serious had happened and did not immediately grant the

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request. The inmate’s condition later worsened. He was sent to the hospital

and diagnosed with a traumatic brain injury. The district court granted

summary judgment to Defendants based on qualified immunity. For the

reasons below, we AFFIRM.

I

Kevion Rogers was a trusted inmate. Prison staff let Rogers work

unsupervised and outside the prison’s security fence. Rogers’s daily job was

to help take care of the prison’s hogs. One day Rogers went into one of the

prison’s hog barns looking for a powder used to keep baby hogs healthy. As

he was leaving, part of the barn’s ceiling collapsed and hit him on the head.

Rogers blacked out.

After he came to, another inmate took Rogers to see the prison’s staff

agricultural specialist, Jeffrey Jarrett. Rogers walked normally into Jarrett’s

office. And though Rogers “had dust on him,” his only visible injury was a

scraped knee. An agitated Rogers demanded “to go to the infirmary.” But

from Jarrett’s perspective, Rogers “looked fine.” Rogers didn’t “look hurt,”

and spoke without a slur. Jarrett told Rogers to keep looking for the powder.

Rogers walked normally out of the office. He did not see Jarrett again that

morning. Jarrett’s job responsibilities took him away from the prison to

another unit.

Rogers tried to go on about his business. But he was “lightheaded”

and had to sit down. Other inmates tried to keep him awake as he drifted “in

and out of consciousness.” Soon after another prison staffer arrived to get

the inmates ready for lunch. Rogers told the staffer that “the ceiling collapsed

on [his] head” and showed the staffer the “debris.” Rogers again asked for

medical attention. The staffer radioed Jarrett’s supervisor, Jeremy Bridges,

and informed him “that the ceiling had fallen on [Rogers’s] head and that

[Rogers] had sustained a head injury.” Bridges radioed back to take Rogers

2

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“back to [his] bunk” so Bridges could “take a look at [him] later.” But

Rogers objected—he still wanted “to go eat lunch.” Rogers’s objection made

Bridges think whatever injuries Rogers had were not “serious.” Bridges

radioed back that going to lunch was fine. He’d be out to check on Rogers

“soon.”

For whatever reason though, Rogers was still brought back to his bunk.

By the time he reached his dormitory his condition had begun to deteriorate.

His head and eyes had begun to swell, his face was bruising, and he was

showing signs of respiratory distress. Prison staff at the dormitory thought

this was “abnormal,” and so Rogers was redirected to the prison’s

administrative building. He collapsed on the way there, began to “seize

violently,” and started “vomiting.” Rogers “lost consciousness.” Within

minutes prison staff at the administrative building summoned medical

assistance. Emergency medical services evacuated Rogers to a nearby

hospital by helicopter. Hospital staff diagnosed Rogers with a “traumatic

brain injury; no hemorrhage.”1

Rogers sued Jarrett, Bridges, and the Texas Department of Criminal

Justice in Texas state court. Under 42 U.S.C. § 1983, Rogers alleged that

prison staff violated his Eighth and Fourteenth Amendment rights by acting

with deliberate indifference towards him. Under the Texas Tort Claims Act,

Rogers alleged premises-liability claims. Defendants removed the case to

federal court and moved for summary judgment on all claims. The district

court granted summary judgment to Defendants on Rogers’s § 1983 claims,

declined to exercise supplemental jurisdiction over his TTCA claims, and

remanded the case to state court. Rogers timely appealed. He argues that

1

Hospital staff released Rogers back to the prison the next day with prescriptions

for pain and anti-nausea medication. The district court found “no evidence in the record

of subsequent problems or complications.”

3

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Jarrett and Bridges were deliberately indifferent towards his serious medical

needs and thus not entitled to qualified immunity.2

II

We review summary judgment de novo.3 Courts may grant summary

judgment on an issue only when “no genuine dispute as to any material fact”

exists “and the movant is entitled to judgment as a matter of law.”4 A fact

dispute is “genuine” if “a reasonable jury could return a verdict for [the

nonmovant] based on the evidence.”5 “[W]e must view all evidence and

draw all justifiable inferences in favor of [Rogers], the nonmovant.”6 Still,

“[c]onclusional allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation” do not count for

raising a genuine fact dispute.7

2

Rogers was represented by counsel in the district court and here. He also argued

in the district court that Defendants were deliberately indifferent towards his safety by

having him work in the hog barn. He did not raise that theory in his opening brief. Likewise,

Rogers raised no claims against TDCJ in his opening brief. He also did not raise the district

court’s refusal to exercise supplemental jurisdiction. It is not our role to “raise and discuss

legal issues that [a party] has failed to assert” on appeal. Brinkmann v. Dall. Cnty. Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). So Rogers has abandoned those issues and

arguments. Id.

3

Batiste v. Lewis, 976 F.3d 493, 500 (5th Cir. 2020).

4

Id. (quoting Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir.

2014)).

5

Coleman v. BP Expl. & Prod., Inc., 19 F.4th 720, 726 (5th Cir. 2021).

6

Id.

7

Id. (quoting TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.

2002)).

4

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III

Rogers contends that the district court improperly granted Jarrett and

Bridges qualified immunity. We have explained before that plaintiffs bear the

“burden” to “demonstrate the inapplicability of the defense.”8 And Rogers

had to meet that burden for each defendant.9 That means Rogers had to (1)

raise a fact dispute on whether his constitutional rights were violated by the

defendants’ individual conduct, and (2) show those rights were “clearly

established at the time of the violation.”10 On this record, Rogers failed to

meet either prong.

A

Rogers contends that he raised a fact dispute on a constitutional

violation. He argues that both Jarrett and Bridges acted with deliberate

indifference towards his serious medical needs, violating his Eighth

Amendment rights in the process. But “[d]eliberate indifference is an

extremely high standard to meet.”11 As the Supreme Court has explained,

Rogers needed to raise a fact dispute on whether Jarrett and Bridges were

each “aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists,” and actually “dr[ew] the

inference.”12 And serious harm isn’t just any harm. Rogers’s medical need

8

McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per

curiam).

9

See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement

is an essential element of a civil rights cause of action.”).

10

See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

11

Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).

12

Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Stewart v. Murphy, 174 F.3d

530, 534 (5th Cir. 1999) (explaining that prison officials act with deliberate indifference only

5

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had to be “so apparent that even laymen would recognize that care is

required.”13 The district court found “no evidence that would permit a jury

to infer that Jarrett and Bridges had subjective knowledge of the severity of

Rogers’s condition.” We agree with the district court.

A reasonable jury could not conclude on this record that either Jarrett

or Bridges actually inferred that Rogers was at substantial risk of serious

harm. As the district court noted, the record supports that both Jarrett and

Bridges knew that Rogers had been hit in the head. But as recounted above,

Jarrett did not perceive any apparent injury to Rogers other than a scraped

knee. From Jarrett’s perspective, Rogers was “look[ing] alright” and

“[didn’t] look hurt.” Rogers “had dust on him,” but did not have visible

injuries, did not slur his speech, and walked normally into and out of Jarrett’s

office. The same goes for Bridges. All he knew about Rogers’s injuries was

what he’d been told over the radio: that Rogers “had sustained a head injury”

after a ceiling collapse. But Bridges testified that he did not think it was a

particularly severe injury since Rogers had requested “to go eat lunch” while

he waited for Bridges to come see him. Indeed, Rogers did not develop severe

symptoms—seizures, vomiting, and loss of consciousness—until later on.

And once he did, prison staff rendered medical aid within minutes.

Rogers disagrees. He argues that fact disputes over what happened

preclude summary judgment; that the district court misapplied the

deliberate-indifference standard; and that Supreme Court and our caselaw

compel a contrary conclusion. We are unconvinced.

when they “know[] of and disregard[] an excessive risk to inmate health or safety” (quoting

Farmer, 429 U.S. at 837)).

13

See Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).

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First, Rogers argues “that there is a genuine issue of material fact in

dispute as to what actually happened on the morning of the incident,”

precluding summary judgment under our decisions. But the district court

analyzed Rogers’s claim under his version of events. And Jarrett and Bridges

do not dispute what they knew when. Rather, the only dispute on appeal is

what inferences Jarrett and Bridges drew from what they knew. Because the

inferences Rogers asks us to make are speculative, this argument fails.14

Second, Rogers argues that the district court misapplied the deliberate-

indifference standard. In Rogers’s view, “the ultimate question” that his

claim turns on is “was [he] exposed to a ‘substantial risk of serious harm’”?

But that misstates the standard. It is not enough for Rogers to have raised a

fact dispute on whether Jarrett and Bridges “actually drew the inference that

[a] potential for harm existed,” as Rogers argues. The Supreme Court was

clear in Farmer v. Brennan: “an official’s failure to alleviate a significant risk

that he should have perceived but did not, while no cause for commendation,

cannot under our cases be condemned as the infliction of punishment.”15 We

have likewise been clear: “[L]iability attaches only if [officials] actually

knew—not merely should have known—about the risk.”16 Bottom line: Mere

negligence is not enough.

Third, Rogers misreads Supreme Court and circuit caselaw. “[T]he

takeaway” from the Supreme Court’s decision in Estelle v. Gamble17 is not

that nonphysician prison staff are “expected to allow prisoners to consult

medical experts because they themselves are not qualified to diagnose or

14

Coleman, 19 F.4th at 726.

15

511 U.S. at 838.

16

Olabisiomotosho v. City of Houston, 185 F.3d 521, 528 (5th Cir. 1999).

17

429 U.S. 97 (1976).

7

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treat . . . medical condition[s],” as Rogers suggests. The takeaway is that

courts must “separately consider” the allegations against physician and

nonphysician staff alike when deciding deliberate-indifference claims.18 And

our decision in Austin v. Johnson19 adds little, if anything, to support Rogers’s

claims. Rogers admits that his case is “unlike” Austin because neither Jarrett

nor Bridges “failed to get medical treatment for [him] after [seeing] his

conditions worsening.”20

B

In sum, Rogers failed to raise a fact dispute over whether Jarrett and

Bridges acted with deliberate indifference. But even if he had, he’d still need

to show that his rights were “clearly established at the time of the

violation.”21 As we have explained many times, that takes showing that “the

violative nature of particular conduct is clearly established.”22 It just isn’t

enough to identify a right as “a broad general proposition.”23 The district

court did not address qualified immunity’s second step. Jarrett and Bridges

argue, though, that even assuming a violation, the law was not clearly

established under this standard. We agree with Jarrett and Bridges.

18

See id. at 108 (“The Court of Appeals focused primarily on the alleged actions of

the doctors, and did not separately consider whether the allegations against the

[nonphysician defendants] stated a cause of action.”).

19

328 F.3d 204 (5th Cir. 2003).

20

See id. at 210 (holding that “failure to call an ambulance for almost two hours

while [a minor] lay unconscious and vomiting” after an afternoon of forced exercise “rises

to the level of deliberate indifference”).

21

Brown, 623 F.3d at 253.

22

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011)).

23

Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).

8

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In barely half a page of briefing Rogers argues that the Supreme

Court’s decision in Estelle “clearly established [the] law govern[ing] the

substance of this entire dispute.” But the only right Rogers identifies as being

violated was his right to be free from deliberate indifference towards his

serious medical needs. That generalized proposition of law is not enough.

The Supreme Court has articulated an exacting standard. Rogers needed to

point to “a case or body of relevant case law in which an officer acting under

similar circumstances was held to have violated the Constitution.”24 And

Estelle just isn’t that case. The Supreme Court reversed us in Estelle that the

doctors had acted with deliberate indifference towards the prisoner.25 And on

remand, we held that the nonphysician prison staff likewise didn’t act with

deliberate indifference.26 Therefore, we cannot agree with Rogers that he has

shown that Jarrett and Bridges violated clearly established law.

For the first time at oral argument, though, Rogers’s counsel argued

that our recent decision in Sims v. Griffin27 supports that Jarrett and Bridges

violated clearly established law. “[W]e cannot and will not consider

arguments raised for the first time at oral argument.”28 Under the Rules of

Appellate Procedure, Counsel should have advised us of any “pertinent and

significant authorities” that had come to his attention after briefing had

concluded “by letter.”29 But even had Rogers’s counsel filed that letter, Sims

is not the helpful precedent he thinks it is.

24

Batyukova v. Doege, 994 F.3d 717, 726 (5th Cir. 2021) (cleaned up).

25

429 U.S. at 107–08.

26

554 F.2d 653, 653–54 (5th Cir. 1977) (per curiam).

27

35 F.4th 945 (5th Cir. 2022).

28

Jackson v. Gautreaux, 3 F.4th 182, 188 n.* (5th Cir. 2021).

29

See Fed. R. App. P. 28(j) (emphasis added).

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All we recognized in Sims was what had already been clearly

established in our circuit: “[A] prisoner can show his clearly established

rights under the Eighth Amendment were violated if a prison official ‘refused

to treat him, ignored his complaints, intentionally treated him incorrectly, or

engaged in any similar conduct that would clearly evince a wanton disregard

for any serious medical needs.’”30 We have held officials liable for violating that

standard before, including when the record supported that they:

 “offered no treatment options to a patient with a history of

cardiac problems who was experiencing severe chest pains;”31

 “knew [a prisoner] had swallowed a bag full of drugs, vomited

multiple times, screamed for help, pleaded to go to the hospital,

and had steadily deteriorated since his arrival at the jail;”32 and

 personally witnessed a prisoner’s head being struck

“repeatedly,” causing him to go “unconscious.”33

Rogers, though, would have us read these cases as clearly establishing that

any report of any strike to a prisoner’s head is enough to trigger a duty for

officials to seek advanced medical care for the prisoner. They do not. No

reasonable official would read them that way, and so we disagree with

Rogers’s formulation of clearly established law.34

30

35 F.4th at 951 (quoting Easter v. Powell, 467 F.3d 459, 465 (5th Cir. 2006) (per

curiam)) (emphasis added).

31

Easter, 467 F.3d at 465.

32

Sims, 35 F.4th at 952.

33

Moore v. LaSalle Mgmt. Co., 41 F.4th 493, at 502 (5th Cir. 2022).

34

See Buehler v. Dear, 27 F.4th 969, 981 (5th Cir. 2022) (“Although the plaintiff

need not identify ‘a case directly on point’ in order to make such a showing, he or she must

point to ‘authority at a sufficiently high level of specificity to put a reasonable official on

10

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IV

What happened to Rogers was unfortunate. Maybe it was negligent.

But was it the product of deliberate indifference? Not on this record. And

even if it were, these officials did not violate clearly established law on these

facts. Bound by our controlling immunity precedent, we AFFIRM.

notice that his conduct is definitively unlawful.’” (quoting Vincent v. City of Sulphur, 805

F.3d 543, 547 (5th Cir. 2015)).

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Don R. Willett, Circuit Judge, concurring:

Today’s decision upholding qualified immunity is compelled by our

controlling precedent. I write separately only to highlight newly published

scholarship that paints the qualified-immunity doctrine as flawed—

foundationally—from its inception.1

For more than half a century, the Supreme Court has claimed that (1)

certain common-law immunities existed when § 1983 was enacted in 1871,2

and (2) “no evidence” suggests that Congress meant to abrogate these

immunities rather than incorporate them.3 But what if there were such

evidence? Indeed, what if the Reconstruction Congress had explicitly

stated—right there in the original statutory text—that it was nullifying all

common-law defenses against § 1983 actions? That is, what if Congress’s

literal language unequivocally negated the original interpretive premise for

qualified immunity? Professor Alexander Reinert argues precisely this in his

new article, Qualified Immunity’s Flawed Foundation—that courts have been

construing the wrong version of § 1983 for virtually its entire legal life.

Wait, what?

1

Alexander A. Reinert, Qualified Immunity’s Flawed Foundation,

111 Cal. L. Rev. 201 (2023) (“This Article takes aim at the roots of the doctrine—

fundamental errors that have never been excavated.”).

2

Pierson v. Ray, 386 U.S. 547, 556–57 (1967) (tethering qualified immunity to

common-law defenses that existed circa 1871, like subjective good faith). Professor William

Baude has challenged this historical premise—forcefully and methodically—arguing that

qualified immunity departs significantly from traditional common-law principles. See

William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45, 49–60 (2018).

Professor Joanna Schwartz likewise questions the doctrine’s origins, contending there were

no common-law immunities. See Joanna C. Schwartz, The Case Against Qualified Immunity,

93 Notre Dame L. Rev. 1797 (2018).

3

Briscoe v. Lahue, 460 U.S. 325, 337 (1983) (“[W]e find no evidence that Congress

intended to abrogate the traditional common-law . . . immunity in § 1983 actions.”).

12

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As passed by the Reconstruction Congress, Section 1 of the Civil

Rights Act of 1871 (now colloquially known as § 1983) read this way:

[A]ny person who, under color of any law, statute, ordinance,

regulation, custom, or usage of any State, shall subject, or cause

to be subjected, any person within the jurisdiction of the

United States to the deprivation of any rights, privileges, or

immunities secured by the Constitution of the United States,

shall, any such law, statute, ordinance, regulation, custom, or

usage of the State to the contrary notwithstanding, be liable to the

party injured in any action at law, suit in equity, or other proper

proceeding for redress . . . .4

The italicized language—the “Notwithstanding Clause,” as Professor

Reinert calls it—explicitly displaces common-law defenses.5 The language

that Congress passed makes clear that § 1983 claims are viable

notwithstanding “any such law, statute, ordinance, regulation, custom, or

usage of the State to contrary.” The language is unsubtle and categorical,

seemingly erasing any need for unwritten, gap-filling implications,

importations, or incorporations. Rights-violating state actors are liable—

period—notwithstanding any state law to the contrary.

Then things went off the rails, quickly and stealthily. For reasons lost

to history, the critical “Notwithstanding Clause” was inexplicably omitted

from the first compilation of federal law in 1874.6 The Reviser of Federal

4

Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13 (1871).

5

Reinert, supra at 235 and n.230 (observing that “this clause meant to encompass

state common law principles,” noting that this understanding—that “custom or usage”

was synonymous with common law—was, “after all,” why the Court overruled Swift v.

Tyson, 41 U.S. 1 (1842), in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and also citing W.

Union Tel Co. v. Call Pub. Co., 181 U.S. 92, 102 (1901), which in turn cites Black’s Law

Dictionary for the proposition that common law derives from “usages and customs”).

6

Reinert, supra at 207, 237.

13

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Statutes made an unauthorized alteration to Congress’s language. And that

error was compounded when the various revised statutes were later

published in the first United States Code in 1926. The Reviser’s error,

whether one of omission or commission, has never been corrected. Today,

152 years after Congress enlisted the federal courts to secure Americans’

constitutional rights, if one were to Google “42 U.S.C. § 1983,” the altered

version that pops up says nothing about common-law defenses. According to

Professor Reinert, that fateful, unexplained omission means that courts and

scholars have never “grappled” with the Notwithstanding Clause’s

significance.7

All to say, the Supreme Court’s original justification for qualified

immunity—that Congress wouldn’t have abrogated common-law

immunities absent explicit language—is faulty because the 1871 Civil Rights

Act expressly included such language. Those sixteen lost words, by presumably

encompassing state common-law principles, undermine the doctrine’s long-

professed foundation and underscore that what the 1871 Congress meant for

state actors who violate Americans’ federal rights is not immunity, but

liability—indeed, liability notwithstanding any state law to the contrary.8

7

Id. at 236, 244.

8

Beyond excavating the long-lost text of what the Reconstruction Congress

actually passed, Professor Reinert asserts a second fundamental misstep: qualified

immunity is rooted in a flawed application of the checkered “Derogation Canon.” This

canon of statutory interpretation urges that statutes in “derogation” of the common law

should be strictly construed. The Court misapplied this canon, says Professor Reinert,

reading § 1983’s silence regarding immunity as implicit adoption of common-law immunity

defenses rather than rejection of them. Id. at 211 n.56 (collecting cases). Professor Reinert

maintains that the Derogation Canon has always rested on shaky ground, with Justice

Scalia, writing with lexicographer Bryan Garner, branding it “a relic of the courts’

historical hostility to the emergence of statutory law.” Id. at 218 (citing Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 318 (2012)). Even more importantly, Reconstruction-era legislators would

14

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These are game-changing arguments, particularly in this text-centric

judicial era when jurists profess unswerving fidelity to the words Congress

chose. Professor Reinert’s scholarship supercharges the critique that modern

immunity jurisprudence is not just atextual but countertextual. That is, the

doctrine does not merely complement the text—it brazenly contradicts it.

In arguing that qualified immunity is flawed from the ground up,

Professor Reinert poses a provocative question: “If a legislature enacts a

statute, but no one bothers to read it, does it still have interpretive force?”9

It seems a tall order to square the modern qualified-immunity regime with

Congress’s originally enacted language. But however seismic the

implications of this lost-text research, “‘[a]s middle-management circuit

judges,’ we cannot overrule the Supreme Court.”10 Only that Court can

definitively grapple with § 1983’s enacted text and decide whether it means

what it says—and what, if anything, that means for § 1983 immunity

jurisprudence.11

not have understood the canon as operating to dilute § 1983 by implying common-law

defenses. Why? Because since the Founding era, the Supreme Court had only used the

Derogation Canon (criticized by mid-nineteenth courts and treatises for arrogating power

to judges) to protect preexisting common law rights, never to import common law defenses

into new remedial statutes. Reinert, supra at 221–28. In short, the Derogation Canon does

not validly apply to defenses. The more applicable canon, around which Reconstruction-

era courts had coalesced, was a contrary one: remedial statutes—such as § 1983—should

be read broadly. Id. at 219, 227–28. In any event, as argued above, even if the Derogation

Canon did apply to defenses, the as-passed language of § 1983 explicitly displaced any

existing common-law immunities.

9

Id. at 246.

10

Sims v. Griffin, 35 F.4th 945, 951 n.17 (5th Cir. 2022) (quoting Whole Woman’s

Health v. Paxton, 978 F.3d 896, 920 (5th Cir. 2020) (Willett, J., dissenting), rev’d en banc,

10 F.4th 430 (5th Cir. 2021)).

11

Not all Supreme Court Justices have overlooked the Notwithstanding Clause. In

Butz v. Economou, the Court quoted the as-passed statutory language, including the

Notwithstanding Clause, yet, in the same breath, remarked that § 1983’s originally enacted

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text “said nothing about immunity for state officials.” 438 U.S. 478, 502–03 & n.29 (1978)

(citing Pierson v. Ray, 386 U.S. 547 (1967), Imbler v. Pachtman, 424 U.S. 409 (1976), and

Scheuer v. Rhodes, 416 U.S. 232 (1974)). Indeed, members of the Supreme Court have often

noted the Notwithstanding Clause’s existence and omission from the U.S. Code. See Hague

v. Comm. for Indus. Org., 307 U.S. 496, 510 (1939); Monroe v. Pape, 365 U.S. 167, 228 (1961)

(Harlan, J., concurring); Adickes v. S. H. Kress & Co., 398 U.S. 144, 203 n.15 (1970)

(Brennan, J., concurring); see also Screws v. United States, 325 U.S. 91, 99 n.8 (1945)

(quoting the originally enacted text, including the Notwithstanding Clause); Monroe, 365

U.S. at 181 n.27 (majority) (same); Examining Bd. of Eng’rs, Architects, & Surveyors v. Flores

de Otero, 426 U.S. 572, 582 n.11 (1976) (same); Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

691–92 (1978) (same); Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 608 n.15 (1979)

(same); Briscoe v. LaHue, 460 U.S. 325, 357 n.17 (1983) (Marshall, J., dissenting) (same);

Wilson v. Garcia, 471 U.S. 261, 262 n.1 (1985) (same); Jett v. Dall. Indep. Sch. Dist., 491

U.S. 701, 723 (1989) (same); Ngiraingas v. Sanchez, 495 U.S. 182, 188 n.8 (1990) (same).

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