Petition for Writ of Certiorari — Guangcun Huang, Petitioner v. Tim Hui-Ming Huang, et al.

Supreme Court briefAug 23, 2021

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Supreme Court, U.S.

FILED

AUG 2 3 2021

OFFICE OF THE CLERK

No.

-36/

In the

Supreme Court of tlje fHntteb States

Guangcun Huang,

Petitioner,

Tim Hui-Ming Huang et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Guangcun Huang

Pro Se

PO Box 1004

Fremont, CA 94538

(210) 589-5684

QUESTIONS PRESENTED

1. Whether this Court’s decisions interpreting the Eleventh Amendment, see e.g.

Fitzpatrick v. Bitzer; Port Authority Trans-Hudson Corp. v. Feeney, bar Title VII and

other claims against UTHSCSA even when UTHSCSA explicitly and voluntarily

invoked federal jurisdiction before being served

2. Whether Petitioner had provided sufficient factual pleadings of Title VII claim

when he met all Fifth Circuit’s requests to do so

3. Whether this Court’s decisions interpreting the Eleventh Amendment, see e.g.

Edelman v. Jordan; Ex parte Young, bar actions against state officials

4. Whether this Court’s decisions interpreting the First Amendment, see e.g.

American Communications Assn. v. Douds; Citizens United v. Fed. Election Comm’n;

Kingsley Books, Inc. u. Brown,; Jones u. Opelika,; Tory v. Cochran, bar UTHSCSA

from selectively subjecting academic scientist Petitioner to thought-probing in

academic setting

5. Whether this Court’s decisions interpreting the First Amendment, see e.g.

Pickering v. Board of Education, 391 U. S. 563, 574 (1968); Connick u. Myers, 461 U.S.

138, 146 (1983); Garcetti v. Cehallos, 547 US 410, 425, 438 (2006), protect an academic

employee’s speech, outside of performing his official duties, on research misconduct

over an external event in international research community

6. Whether Petitioner has standing to obtain declaratory and injunctive relief

when suffering ongoing violation of federal law and request damages and equity relief

/•/•

Questions Presented

7. Whether Texas Tort Claim Act bar claims against individual employees for

their retaliatory actions outside the scope of their employment

8. Whether this Court’s decisions interpreting the Fourteenth Amendment,

including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas

Health Science Center at San Antonio’s denial of promotion of non-religiosity

employee and selective denial of an individual’s thoughts.

9. Whether First Amendment Rights and freedom of movement are Petitioner’s

liberty interest

10. Whether UTHSCSA’s counter-motion to stay discovery should be dismissed

when it failed to make mandatory initial disclosure and being compelled to disclose

Ill

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner in this case is Guangcun Huang.

Respondents are Tim Hui-Ming Huang, Chairman of the Department of

Molecular Medicine, the School of Medicine, the University of Texas Health Science

Center at San Antonio, in his Official Capacity and in his Individual Capacity; ChunLiang Chen, an employee of the Department of Molecular Medicine, in his Official

Capacity and in his Individual Capacity; Chun-Lin Lin, an employee of the

Department of Molecular Medicine, in his Official Capacity and in his Individual

Capacity; Kohzoh Mitsuya, an employee of the Department of Molecular Medicine, in

his Official Capacity and in his Individual Capacity; DeAnna Hester, the

Administrator of the Department of Molecular Medicine, in her Official Capacity and

in her Individual Capacity; the University of Texas Health Science Center at San

Antonio; Jennifer S. Potter, the Vice Dean of the School of Medicine at the University

of Texas Health Science Center at San Antonio, in her Official Capacity and in her

Individual Capacity; William L. Henrich, the President of the University of Texas

Health Science Center at San Antonio, in his Official Capacity and in his Individual

Capacity; other employees of the University of Texas Health Science Center at San

Antonio, in their Official Capacity and in their Individual Capacity.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF THE CASE

Facts

Proceedings Below

REASONS FOR GRANTING THE PETITION

I. The Fifth Circuit’s Analysis On UTHSCSA And Individual

Respondents’ Eleventh Amendment Immunity From Title VII

And Other Claims AfterUTHSCSA Had Consented To Suit In

Federal Court Conflicts With The Decisions Of This Court And

Has So Far Departed From The Accepted And Usual Course Of

Judicial Proceedings As To Call For An Exercise Of This Court’s

Supervisory Power..............................................................................

II. The Fifth Circuit’s Analysis On Petitioner’s Title VII Factual

Pleadings Has So Far Also Departed From The Accepted And

Usual Course Of Judicial Proceedings As To Call For An Exercise

Of This Court’s Supervisory Power.....................................................

Table of Contents

III. The Fifth Circuit’s Analysis On Petitioner’s Being SelectivelySubject To

Thought-Probing Conflicts With This Court’s Decisions

On Overly Broad Prior Restraint on A Particular Individual’s Speech......15

IV. The Fifth Circuit Has Entered A Decision, Applying Garcetti v.

Ceballos To Academic Setting, In Conflict With The Decisions Of

Other Circuits’ On The Same Important Matter...............................

V. The Fifth Circuit’s Analysis Holding Petitioner’s Speech Unprotected

When He, Outside The Course Of Performing His Official Duties, Spoke

On Research Misconduct Over An External Event In The International

Research Community Conflicts with the Decisions of this Court............... 19

VI. The Fifth Circuit’s Analysis Holding The Petitioner Has No Standing

To Obtain Declaratory And Injunctive Relief Has So Far Departed From

The Accepted And Usual Course Of Judicial Proceedings As To Call For

An Exercise Of This Court’s Supervisory Power.............................................. 23

VII.The Fifth Circuit’s Analysis On Texas Tort Claims Act Conflicts With

Texas Supreme Court’s Decision.....................................................................

VIII. The Fifth Circuit’s Analysis On Petitioner’s Failure To State A Claim

Conflicts With Decisions of this Court’s Precedents, Conflicts With Other

Circuits’ Decisions On The Same Matter, And Has So Far Departed From

The Accepted And Usual Course Of Judicial Proceedings As To Call For

An Exercise Of This Court’s Supervisory Power............................................... 26

CONCLUSION

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED STATES COURT OF

APPEALS, FIFTH CIRCUIT, DATED FEBRUARY 10, 2021.......

APPENDIX B — ORDER OF UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION,

DATED APRIL 29, 2020......................................................................

15a

APPENDIX C — ORDER OF THE UNITED STATES COURT OF

APPEALS, FIFTH CIRCUIT ON PETITION FOR REHEARING EN BANC,

DATED MARCH 24, 2021.....................................................................................

36a

APPENDIX D — 42 U.S.C. § 2000e, 2000e-2(a), 2000e-5(a)-(g)

37a

APPENDIX E — UT HEALTH SAN ANTONIO REGULATORY AFFAIR &

COMPLIANCE’S INVESTIGATION REPORT ON ALLEGED UNLAWFUL

RETALIATION, DATED APRIL 19, 2018...........................................................

44a

APPENDIX F — UT HEALTH SAN ANTONIO SCHOOL OF MEDICINE

INVESTIGATION REPORT ON ALLEGED RESEARCH MISCONDUCT,

DATED APRIL 19, 2018.....................................................................................

50a

APPENDIX G — UTHSCSA PROFESSOR DR. JIN’S LETTER TO EEOC,

DATED JANUARY 25, 2021.........................................................................

53a

Vll

TABLE OF CITED AUTHORITIES

Page

CASES

Adams v. Trustees of the Univ. of NC-Wilmington,

640 F. 3d 550, 564 (4th Cir. 2011).......................

Alexander v. Eeds,

392 F.3d 138, 142 (5th Cir. 2004)

American Communications Assn. v. Douds,

339 US 382, 421, 439, 442, 444, 445, 445-446 (1950)

.passim

Aptheker v. Secretary of State,

378 U. S. 500, 505-506 (1964)

Atascadero State Hospital, supra,,

473 U.S., at 241, 105 S. Ct., at 3146

Blow v. City of San Antonio,

236 F.3d 293, 296 (5th Cir. 2001)

Branton v. City of Dallas,

272 F.3d 730, 739 (5th Cir. 2001)

Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 340 (2010).......................

Connick v. Myers,

461 U.S. 138, 146(1983)

Demers v. Austin,

746 F. 3d 402, 412 (9th Cir. 2014)

19-20, 21

19-20

Edelman v. Jordan,

415 U.S. 651 (1974)

Ex parte Young,

209 U.S. 123 (1908)

13, 24

Fitzpatrick v. Bitzer,

427 U.S. 445, 447-48, 448-49, 453 n.9 (1976)

via

Cited Authorities

Page

Freedman v. Maryland,

380 US 51, 57 (1965)

Garcetti v. Ceballos,

547 US 410, 418, 419, 423-24, 425, 438 (2006)

.passim

Johnson v. Lankford,

245 U.S. 541 (1918)

Jones v. Opelika,

316 U.S. 584, 618(1942)

Jones v. Opelika,

319 U.S. 103 (1943)

Kent v. Dulles,

357 U. S. 116, 126 (1958)

Kingsley Books, Inc. v. Brown,

354 US 436 (1957)...............

17-18

Kolender v. Lawson,

461 US 352, 358 (1983)

Lane u. Franks,

134 S. Ct. 2374 (2014)

20, 21

Lapides v. Bd. of Regents of Univ. Sys. of Georgia,

535 U.S. 613, 616(2002)........................................

Laverie v. Wetherbe,

517 SW 3d 748, 753 (Tex. 2017)

Martin v. Lankford,

245 U.S. 547 (1918)

McCarthy ex rel. Travis v. Hawkins,

381 F.3d 407, 416-17 (5th Cir. 2004)

Morris v. Dearborne,

181 F.3d 657, 668 (5th Cir. 1999)

Cited Authorities

Page

Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.,

391 U. S. 563,574(1968).........................................................................

Port Authority Trans-Hudson Corp. v. Feeney,

495 U.S. 299, 305-306 (1990)..................................................................

11-12

Rankin v. McPherson,

483 U. S. 378 (1987)

Scheuer v. Rhodes,

416 US 233 (1974)

Shuttlesworth v. City of Birmingham,

382 U.S. 87,91 (1965)...................

Tory v. Cochran,

544 US 734, 738 (2005)

United States v. Schwimmer,

279 U.S. 644, 654-55 (1929)

Verizon Maryland, Inc. v. Public Service Commission of Maryland,

535 U.S. 635, 645 (2002)..................................................................

Waters v. Churchill,

511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)

Whitney v. California, 274 US 357, 375 (1927),

274 US 357, 375 (1927)..................................

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS

28U.S.C. § 1983

.passim

28U.S.C. §2000e

28 U.S.C. § 2000e-2a

28 U.S.C. § 2000e-5(a)-(g)

28 U.S.C. § 1254(1)

Cited Authorities

Page

Fed. R. Civ. P. Rule 12(b)(1)

8, 9, 26

Fed. R. Civ. P. Rule 12(b)(6)

8, 9, 27

Fed. R. Civ. P. Rule 15(a)(1)

Fed. R. Civ. P. Rule 26(a)(1)(D)

7, 28

S. Ct. Rule 10(a)

.passim

S. Ct. Rule 10(c)

.passim

Tex. Civ. Prac. & Rem. Code § 101.106(f)

25, 26

Title VII of the Civil Rights Act of 1964

.passim

U.S. Const., amend. I

.passim

U.S. Const., amend. XI

.passim

U.S. Const., amend. XIV

.passim

PUBLIC RECORD

Office ofPublic Affairs, Duke University Agrees to Pay U.S. $112.5 Million to

Settle False Claims Act Allegations Related to Scientific Research Misconduct,

U.S. Department of Justice (March 25, 2019),

https://www.iusiice.gov/opa/pr/duke-universitv-agrees-pay-us-1125-millionsettle-false-claims-act-allcgationsrelated

Sheila Kaplan, Duke University to Pay $112.5 Million to Settle Claims of

Research Misconduct, N.Y. Times (March 25, 2019),

https://wwvv.nvtlmes.com/2019/Q3/25/science/duke-settlement.-research.html....... 22

PETITION FOR A WRIT OF CERTIORARI

Academic scientist Petitioner Guangcun Huang (“Petitioner”) respectfully

submits his petition for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit (App.

la-14a) is available at 2021 WL 519411, and its order denying rehearing en banc is

reprinted at App. 36a. The federal district court’s order granting Respondents’ motion

to dismiss and dismissing case with prejudice is reprinted at App. 15a-35a.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit rendered its decision

on February 10, 2021. App. la. A timely petition for rehearing en banc was denied on

March 24, 2021. App. 36a. This Court’s March 19, 2020 order extended the deadline

to file petitions for writs of certiorari in all cases to 150 days from the date of the

lower court judgment, order denying discretionary review, or order denying a timely

petition for rehearing. On July 19, 2021 this Court ordered that for cases in which

the relevant lower court judgment, order denying discretionary review, or order

denying a timely petition for rehearing was issued before July 19, 2021, the deadline

remains extended to 150 days from that judgment or order. Petitioner’s Petition for a

Writ of Certiorari is due August 23, 2021 because August 21, 2021 is a Saturday. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const, amend. I:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the government for a

redress of grievances.

U.S. Const, amend. XI:

The judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by citizens of another state, or

by citizens or subjects of any foreign state.

U.S. Const, amend. XIV, § 1, 5:

No State shall ... deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.

42 U.S.C. § 1983 ■ Civil action for deprivation of rights:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress ...

Title VII of the Civil Rights Act of 1964, as amended, as it appears in 42 U.S.C.

beginning at section 2000e. See e.g. 42 U.S.C. § 2000e, 2000e-2(a), 2000e-5(a)-(g). App.

37a-43a.

STATEMENT OF THE CASE

A. Facts

Academic scientist Petitioner Guangcun Huang

(“Petitioner”),

at the

University of Texas Health Science Center at San Antonio (“UTHSCSA”), learned

that another UTHSCSA employee Respondent Kohzoh Mitsuya (“Mitsuya”), when

submitting a manuscript to external international research journal Caner Research

for consideration for publication, forged co-author’s consent to submission and made

other false statements in the manuscript. App. 50a. On April 8, 2018, outside the

course of performing his official duties, Petitioner complained to Respondent Tim

Hui-Ming Huang (“Tim Huang”), the Chairman of Department of Molecular Medicine

at UTHSCSA’s School of Medicine, in his official Chairman’s capacity, App. 45a, over

Mitsuya’s research misconduct, and, on April 12, 2018,1 to Roberts A. Hromas

(“Hromas”), the Dean of School of Medicine, App. 46a, in accordance with UTHSCSA’s

policy, App. 47a-48a, but Tim Huang, although conceded that Mitsuya indeed was

making false statement in the manuscript, took actions, inter alia, calling and holding

a meeting, on April 13, 2018, App. 46a, 48a, in the presence of Respondent DeAnna

Hester (“Hester”), the Administrator of Department of Molecular Medicine, and other

employees, and threatening Petitioner of termination, App. 46a-48a, and literally

restraining Petitioner from moving away from his desk, Id., when at work for the next

several months, and, without authority, intentionally and falsely accused Petitioner

1 In June 2018, Petitioner further notified the Editor-in-Chief at Cancer Research about Mitsuya’s

research misconduct and the manuscript was immediately rejected.

of being “unhealthy” and spreading it, through emails, to other unrelated UTHSCSA

employees (App. 2a, 16a). Petitioner filed an unlawful retaliation complaint against

Tim Huang, and it was upheld by UTHSCSA’s Office of Regulatory Affairs &

Compliance on April 19, 2018. App. 17a; App. 44a-49a. The investigation report also

noted that Mitsuya’s alleged acts fell into research misconduct (App. 49a); however,

School of Medicine Investigator Respondent Jennifer S. Potter (“Potter”) later ran a

sham investigation and, inter alia, intentionally ignored the above UTHSCSA’s

opinion, Id.; see also App. 50a-52a but compare App. 44a-49a. Petitioner was still

enjoined from moving away from his desk when at work and he was eventually

transferred to Hromas’s Lab on September 4, 2018 (App. 2a, App. 48a, App. 54a).

In April 2019, Petitioner filed suit against UTHSCSA and its employees in

state court, App. 18a, alleging, inter alia, unlawfully retaliating him, as determined

by UTHSCSA, for his speech, more specifically internal report directed at his nominal

superior but outside the course of performing his official duties, on research

misconduct over an external event in the worldwide research community, selectively

enjoining him from his message, expressing his thoughts during academic debate,

before its publication (App. 17a), and violations of Fourteen Amendment and Texas

Constitution, and seeking monetary, declaratory and injunctive relief. In May 2019,

Petitioner filed with the Equal Employment Opportunity Commission (“EEOC”) a

charge of discrimination. App. 18a. In June 2019, then Individual Respondents

removed the case to federal court (Id.) while UTHSCSA, in July 2019 but before being

served, wrote to EEOC explicitly asking for a Right-to-Sue letter so that UTHSCSA

could “defend all...alleged complaints in the Charge under one lawsuit [in federal

court/’ (Id.). In February 2020, Petitioner received the Right-to-Sue letter (Id.) and,

as requested by UTHSCSA (Id.), added Title VII claim alleging that, inter alia, during

his tenure at Department of Molecular Medicine, Petitioner, due to his non-religiosity,

was repeatedly but differently treated including: (i) that Petitioner was singled out

and requested to have two first-author research papers to be eligible to be promoted

to Assistant Professor (App. 2a, 16a); and (ii) that he published two first-author

research papers (App. 54a; but compare App. 2a,) but was never being promoted while

UTHSCSA’s similarly situated employees who were religious were promoted even

without any first-author paper (App. 54a). Petitioner also alleged that Tim Huang

frequently made him, being the only non-religiosity one, uncomfortable when

discussing religion during meetings. App. 32a. Petitioner further alleged that, in

January 2018, Tim Huang told Petitioner that Tim Huang himself had instructed

Hester to work on paperwork promoting Petitioner, but Hester denied that later. App.

3a. On April 2, 2018, during a public meeting, when Petitioner complained of not

being promoted with 4 years of excellent annual performance review, Tim Huang

couldn’t explain why Petitioner had never been promoted but instead falsely denied

the existence of annual performance review documents signed by Tim Huang himself.

Tim Huang conceded Petitioner’s complaints constituted to a hostile work

environment. UTHSCSA’s President William L. Henrich (“Henrich”) and other

employees wittingly allowed Tim Huang to continue retaliating Petitioner including

restricting his movement for months while UTHSCSA was investigating Tim Huang

over the alleged unlawful retaliation and even after UTHSCSA had determined the

said unlawful retaliation, and further denying Petitioner of a promotion otherwise

deserved (App. 54a-55a). Mitsuya was promoted on September 1, 2018 {Id. at 54a)

and before Petitioner was transferred on September 4, 2018 {Id.).

When the case was pending and Petitioner alleged other research misconduct

related to Tim Huang, UTHSCSA, in October 2019, implemented a new policy making

internal report on research misconduct official duties of employees like Petitioner,

forcing Petitioner either to comply with the policy by making internal report on other

research misconduct as he alleged in his pleadings this case and subject himself to

unlawful retaliation as occurred and determined by UTHSCSA here or not to comply

with the policy by knowingly not making any internal report on research misconduct

but subject himself to disciplinary actions. The new policy again states that

“(m)isconduct also includes retaliation of any kind against a person who reported or

provided information about suspected or alleged misconduct”.

B. Proceedings Below

Petitioner filed suit in the state court against UTHSCSA and its employees in

April 2019, and Individual Respondents removed it to the federal district court in

June 2019. App. 18a. On July 10, 2019, UTHSCSA, before being served, wrote to

EEOC explicitly asking for a Right-to-Sue letter so that it could “defend all...alleged

complaints in the Charge under one lawsuit [in federal courtf\ Id. Petitioner

requested UTHSCSA to waive service on July 25, 2019, and such waiver was filed on

July 30, 2019. A Scheduling Order was issued on August 6, 2019. UTHSCSA failed

to make any mandatory initial disclosures but resonated it with an excuse that

“Plaintiff has not provided Defendants with his initial disclosures”, which is explicitly

excluded in Fed. R. Civ. P. Rule 26(a)(1)(D). More than 2 months later, UTHSCSA, in

October 2019, without conferring with Petitioner in good faith, filed Opposed Motion

to Stay Discovery and Opposed Motion for Protective Order, which was granted over

opposition. (App. 19a)

As he later pointed out in his Opening Brief to the Fifth Circuit, Petitioner

attempted three times to timely amend complaint, as a matter of course pursuant to

Fed. R. Civ. P. Rule 15(a)(1), in the district court. The first one was mistakenly

rejected by court clerk but the district court denied, without explanation, Petitioner’s

motion for correction. Fifth Amended-Complaint was timely submitted, in the

traditional manner as required, and the clerk received and stamped it on December

5, 2019 but never filed it. The other Amended-complaint, pursuant to Fed. R. Civ. P.

Rule 15(a)(1), was timely filed on November 4, 2019, but opposing counsel

immediately requested it to be stricken, and was removed from the record. Without

being permitted to amend pursuant to Fed. R. Civ. P. Rule 15(a)(1), Petitioner was

explicitly advised that he would not be permitted to amend complaint although the

district court, on March 16, 2020, stated that “(t)his case is still at the very beginning

stage” without any mandatory initial disclosure made by UTHSCSA.

Petitioner received, in February 2020 (App. 18a), the Right-to-Sue letter and,

as UTHSCSA requested (Id.), added Title VII claim in March 2020, which was

granted on March 16, 2020 but clerk never filed the complaint. In April 2020, the

district court ordered granting Respondents’ motion to dismiss for lack of jurisdiction

and for failure to state a claim with prejudice under Fed. R. Civ. P. Rules 12(b)(1) and

12(b)(6), inter alia, granting UTHSCSA Eleventh Amendment immunity from Title

VII and hostile workplace environment claims, ruling Petitioner’s speech, outside the

course of performing his official duties, on research misconduct over an external event

unprotected, permitting Respondents’ selectively subjecting Petitioner to thought

probing—not allowing scientist Petitioner to think, denying Individual Respondents’

liability including unlawful retaliation against Petitioner, as determined by

UTHSCSA, due to Petitioner’s complaint, outside the course of performing his official

duties, about research misconduct over an external event, and denying Petitioner’s

other relief including declaratory/injunctive relief on, inter alia, UTHSCSA’s new

policy making internal report on research misconduct official duties of employees like

Petitioner, forcing Petitioner either to comply with the policy by making internal

report on other research misconduct as he alleged in his pleadings this case and

subject himself to unlawful retaliation as occurred and determined by UTHSCSA

here or not to comply with the policy by knowingly not making any internal report on

research misconduct but subject himself to disciplinary actions. App. 15a-35a.

Petitioner timely appealed to the Fifth Circuit in May 2020. In his Opening

Brief, Petitioner argued, inter alia, that Individual Respondents are not entitled to

qualified immunity, from claims under 42 U.S.C. § 1983, under Fed. R. Civ. P. Rule

12(b)(1), and the district court erred in dismissing his claims against Individual

Respondents in their individual capacities under Fed. R. Civ. P. Rule 12(b)(1). In his

Reply Brief, Petitioner further pointed out that Respondents, in their Answering

Brief, did not address the above issue at all, and that Respondents had also failed to

timely appeal the district court’s failure in dismissing other multiple claims listed in

the charts introduced in their Answering Brief. The Fifth Circuit stated that “the

district court’s findings as to lack of jurisdiction under [Fed. R. Civ. P.] Rule 12(b)(1)

do not cover all of Appellant’s claims” (App. 9a) and that “(i)n particular”:

the district court’s jurisdictional findings do not cover Appellant’s

claims under 42 U.S.C. § 1983 against Appellees Huang, Chen,

Lin, Mitsuya, and Hester, and against Appellees Henrich and

Potter in their individual capacities to the extent that Appellant

seeks damages for these claims. The district court did not make

any findings in response to Appellees’ motion to dismiss argument

that individual Appellees acting in their official capacities are not

“person[s]” within the meaning of 42 U.S.C. § 1983.

Id. at 9a n.2. The Fifth Circuit then “turn(ed) to the district court’s reasons for

granting Appellees’ motion to dismiss for failure to state a claim”, under Fed. R. Civ.

P. Rule 12(b)(6), regarding First Amendment, Fourteenth Amendment Due Process,

Fourteenth Amendment Equal Protection, Title VII and Hostile Work Environment.

In their Answering Brief, Respondents conceded that they “did not argue for

dismissal (of Title VII claim) based on (Eleventh Amendment) immunity”.

In February 2021, the Fifth Circuit affirmed the district court’s order, holding,

inter alia, that the Eleventh Amendment bars UTHSCSA and officials from suit

including Title VII claim although UTHSCSA had explicitly but voluntarily invoked

federal jurisdiction before it was served in state court where this case originated, that

Petitioner surrounded his freedom of thoughts when accepting government

employment, that Petitioner’s speech, outside the course of performing his official

duties, on research misconduct over an external event in the worldwide research

community unprotected, and that Petitioner has no standing for requesting

declaratory/injunctive relief on, inter alia, UTHSCSA’s new policy making internal

report on research misconduct official duties of employees like Petitioner, forcing

Petitioner either to comply with the policy by making internal report on other research

misconduct as he alleged in his pleadings this case and subject himself to unlawful

retaliation as occurred and determined by UTHSCSA here or not to comply with the

policy by knowingly not making any internal report on research misconduct but

subject himself to disciplinary actions. App. la-14a. A timely petition for rehearing

en banc was denied on March 24, 2021. App. 36a.

REASONS FOR GRANTING THE PETITION

Certiorari should be granted because the Fifth Circuit not only “[repeatedly]

decided an important federal question in a way that conflicts with relevant decisions

of this Court”, S. Ct. Rule 10(c), it also “has entered a decision in conflict with the

decision of another United States court of appeals on the same important matter”, S.

Ct. Rule 10(a), “has decided an important federal question in a way that conflicts with

a decision by a state court of last resort”, Id., and “has so far departed from the

accepted and usual course of judicial proceedings... as to call for an exercise of this

Court’s supervisory power”, Id.

I. The Fifth Circuit’s Analysis On UTHSCSA And Individual Respondents’

Eleventh Amendment Immunity From Title VII And Other Claims After

UTHSCSA Had Consented To Suit In Federal Court Conflicts With The

Decisions Of This Court And Has So Far Departed From The Accepted

And Usual Course Of Judicial Proceedings As To Call For An Exercise

Of This Court’s Supervisory Power.

In their Answering Brief, Respondents conceded that they “did not argue for

dismissal (of Title VII claim) based on (Eleventh Amendment) immunity”. The Fifth

Circuit dismissed all claims against UTHSCSA as barred by the Eleventh

Amendment, App. 6a-7a. The Fifth Circuit “has so far departure from the accepted

and usual course of judicial proceedings as to call for an exercise of this Court’s

supervisory power”. S. Ct. Rule 10(a).

The Fifth Circuit’s decision affirming UTHSCSA’s Eleventh Amendment

Immunity from suit also conflicts with this Court’s precedent. In Fitzpatrick v.

Bitzer, 427 U.S. 445, 447-48 (1976), this Court stated that:

[I]n the 1972 Amendments to Title VII of the Civil Rights Act of

1964, Congress, acting under § 5 of the Fourteenth Amendment,

authorized federal courts to award money damages in favor of a

private individual against a state government found to have

subjected that person to employment discrimination on the basis

of “race, color, religion, sex, or national origin.”

Id. at 447-48. “Title VII, which originally did not include state and local governments,

had in the interim been amended to bring the States within its purview.” Id. at 44849. The Court also stated that there was “no dispute” that, in extending the scope of

Title VII to “States as employers, Congress exercised its power under § 5 of the

Fourteenth Amendment.” Id. at 453 n.9.

Eleventh Amendment is also waived if the state consents to suit. A state may

waive its immunity by initiating or participating in litigation. See e.g. Lapides v. Bd.

of Regents of Uniu. Sys. of Georgia, 535 U.S. 613, 616 (2002). In Port Authority

Trans-Hudson Corp. u. Feeney, 495 U.S. 299, 305—06 (1990), this court stated that:

The Court will give effect to a State's waiver of Eleventh

Amendment immunity “ ‘only where stated by the most express

language or by such overwhelming implication from the text as

[will] leave no room for any other reasonable construction.’ ”

Atascadero State Hospital, supra, 473 U.S., at 239240, 105 S.Ct.,

at 3145-3146 (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94

S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974) (internal quotation

omitted)). A State does not waive its Eleventh Amendment

immunity by consenting to suit only in its own courts, see, e.g.,

Florida Dept, of Health and Rehabilitative Services v. Florida

Nursing Home Assn., 450 U.S. 147, 150, 101 S. Ct. 1032, 1034, 67

L.Ed.2d 132 (1981) (per curiam), and "[t]hus... it must specify the

State's intention to subject itself to suit in federal court."

Atascadero State Hospital, supra, 473 U.S., at 241, 105 S. Ct., at

3146.

Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305-06 (1990). Here,

UTHSCSA has “specified) (its) intention to subject itself to suit in federal courf (Id.

at 306) because on July 10, 2019, UTHSCSA, before being served, wrote EEOC a letter

explicitly asking for a Right-to-Sue letter so that it could “defend all...alleged

complaints in the Charge under one lawsuit [in federal courtf\ App. 18a. There was

one and only one case at the time because then Individual Respondents, without

UTHSCSA, removed this case to federal district court on June 28, 2019. Id. Thus,

UTHSCSA has explicitly and voluntarily invoked federal jurisdiction and waived its

sovereign immunity.

Henrich and Potter in their official capacity are not entitled to sovereign

immunity from actions against them for damages arising out of willful and negligent

disregard of state laws and due to Petitioner’s seeking not only damages imposing

individual and personal liability on the officials but also declaratory or injunctive

relief, inter alia, terminating Potter and other Individual Respondents and

UTHSCSA’s new policy making internal report on research misconduct official duties

of employees like Petitioner, forcing Petitioner either to comply with the policy by

making internal report on other research misconduct as he alleged in his pleadings

this case and subject himself to unlawful retaliation as occurred and determined by

UTHSCSA here or not to comply with the policy by knowingly not making any internal

report on research misconduct but subject himself to disciplinary actions. See e.g.

Edelman v. Jordan, 415 U.S. 651 (1974); Ex parte Young, 209 U.S. 123 (1908);

Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918);

Scheuer v. Rhodes, 416 US 233 (1974). However, the Fifth Circuit stated that

“Henrich and Potter, both employees of UTHSCSA and state officials, did not join the

removal of this case to federal court and did not otherwise waive sovereign immunity.

Accordingly, Henrich and Potter are entitled to Eleventh Amendment immunity from

suit in their official capacities.” App. 7a. Thus, the Fifth Circuit’s decision on Eleventh

Amendment again conflicts with this Court’s precedents. S. Ct. Rule 10(c).

II. The Fifth Circuit’s Analysis On Petitioner’s Title VII Factual Pleadings

Has So Far Also Departed From The Accepted And Usual Course Of

Judicial Proceedings As To Call For An Exercise Of This Court’s

Supervisory Power.

Petitioner alleged that he was repeatedly but differently treated including: (i)

that Petitioner was singled out and requested to have two first-author research

papers to be eligible to be promoted to Assistant Professor (App. 2a, 16a); and (ii)

that he published two first-author research papers (App. 54a) but was never.being

promoted (App. 53a-55a) while UTHSCSA’s similarly situated employees who were

religious were promoted even without any first-author paper (App. 54a). Petitioner

also alleged that Tim Huang frequently made him, being the only non-religiosity

one, uncomfortable when discussing religion during meetings. App. 32a. Petitioner

further alleged that, in January 2018, Tim Huang told Petitioner that Tim Huang

himself had instructed Hester to work on paperwork promoting Petitioner, but

Hester denied that later. App. 3a. On April 2, 2018, during a public meeting, when

Petitioner complained of not being promoted with 4 years of excellent annual

performance review, Tim Huang couldn’t explain why Petitioner had never been

promoted but instead falsely denied the existence of annual performance review

documents signed by Tim Huang himself. Tim Huang conceded Petitioner’s

complaints constituted to a hostile work environment. Months later, Mitsuya, who

is religious, was promoted on September 1, 2018 and before Petitioner was

transferred on September 4, 2018 (App. 54a). Here, Petitioner argues that he was

not promoted due to his non-religiosity in violation of Title VII of the Civil Rights

Act of 1964, App. 12a, and alleged that (1) due to his being the only non-religiositv

one (App. 32a): although (2) he was qualified (App. 53a-55a) and Tim Huang even

claimed having instructed Hester on Petitioner’s promotion paperwork (App. 3a): (3)

he was not promoted (Ann, 53a-55a): and (4) the position he sought was filled bv

three others, including Mitsuv, App. 54a, outside the protected class. However, The

Fifth Circuit stated that:

In a “failure to promote” claim under Title VII the plaintiff has

the burden to show that “(1) [he] was within a protected class; (2)

[he] was qualified for the position sought; (3) [h]e was not

promoted; and (4) the position [he] sought was filled by someone

outside the protected class.” Blow v. City of San Antonio, 236 F.3d

293, 296 (5th Cir. 2001). Appellant has not made this prima facie

showing.

App. 12a; but compare supra at 14. Thus, The Fifth Circuit “has so far also departed

from the accepted and usual course of judicial proceedings as to call for an exercise

of this Court’s supervisory power”. S. Ct. Rule 10(a).

III. The Fifth Circuit’s Analysis On Petitioner’s Being Selectively Subject

To Thought-Probing Conflicts With This Court’s Decisions On Overly

Broad Prior Restraint On A Particular Individual’s Speech.

Concurring in Whitney v. California, 274 US 357, 375 (1927), Justice Brandeis

wrote that:

(The framers of the Constitution) believed that freedom to think

as you will and to speak as you think are means indispensable to

the discovery and spread of political truth... they knew that order

cannot be secured merely through fear of punishment for its

infraction; that it is hazardous to discourage thought, hope and

imagination; that fear breeds repression; that repression breeds

hate; that hate menaces stable government; that the path of safety

lies in the opportunity to discuss freely supposed grievances and

proposed remedies; and that the fitting remedy for evil counsels is

good ones.

Id. at 375 (emphases added). Quoting Justice Holmes’s dissenting opinion in United

States v. Schwimmer, 279 U.S. 644, 654-55 (1929), Justice Jackson, in his concurring

and dissenting, each in part, opinion in American Communications Assn. v. Douds,

339 US 382, 439, 442, 444 (1950), wrote that:

But “if there is any principle of the Constitution that more

imperatively calls for attachment than any other it is the

principle of free thought —not free thought for those who agree

with us but freedom for the thought that we hate...While the

Governments, State and Federal, have expansive powers to

curtail action, and some small powers to curtail speech or writing,

I think neither has any power, on any pretext, directly or

indirectly to attempt foreclosure of any line of thought...This is

not only because individual thinking presents no danger to

society, but because thoughtful, bold and independent minds are

essential to wise and considered self-government...The priceless

heritage of our society is the unrestricted constitutional right of

each member to think as he will. Thought control is a copyright

of totalitarianism, and we have no claim to it.. .And I have pointed

out that men cannot enjoy their right to personal freedom if

fanatical masses, whatever their mission, can strangle individual

thoughts and invade personal privacy.

Id. at 439, 442, 444. Similarly, Justice Frankfurter wrote that:

As MR. JUSTICE JACKSON'S opinion indicates, probing into

men's thoughts trenches on those aspects of individual freedom

which we rightly regard as the most cherished aspects of Western

civilization. The cardinal article of faith of our civilization is the

inviolate character of the individual. A man can be regarded as

an individual and not as a function of the state only if he is

protected to the largest possible extent in his thoughts and in his

beliefs as the citadel of his person.

Id. at 421 (emphases added), and Justice Black wrote that:

We have said that"Freedom to think is absolute of its own nature;

the most tyrannical government is powerless to control the

inward workings of the mind."

Id. at 445 (emphasis added); citing dissenting opinion in Jones v. Opelika, 316 U.S.

584, 618 (1942) (it also declared that “(freedom of speech, freedom of the press, and

freedom of religion all have a double aspect — freedom of thought and freedom of

action”. Id.) adopted as this Court’s opinion in Jones v. Opelika, 319 U.S. 103 (1943).

Here, academic scientist Petitioner was singled out and censored from using

the phrase “I think” to express his thought in writing during scientific discussion.

App. 3a. First, Petitioner was attacked for his message “I think” expressing his

thoughts. Moreover, Petitioner was singled out and attacked for his message “I think”

expressing his thoughts while others freely used the same message “I think” in the

same context, and Respondent Chun-Liang Chen (“Chen”), who denied Petitioner to

sue the phrase, wrote “I think” in his email to Petitioner in the email string within

48 hours. This is content discrimination and viewpoint discrimination, facially

unconstitutional

and

considered

especially

egregious

form

of content

discrimination. In Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010),

this Court held that “(s)peech restrictions based on the identity of the speaker are all

too often simply a means to control content” and “the Government may commit a

constitutional wrong when...it identifies certain preferred speakers.” Id. at 340.

Third, what being attacked here is factually the freedom to think which “is absolute

of its own nature...Individual freedom and governmental thought-probing cannot live

together. As the Court admits even today, under the First Amendment ‘Beliefs are

inviolate.’ ” American Communications Assn. v. Douds, 339 US 382, 445-46 (1950).

Moreover, Petitioner’s thoughts during scientific discussion — at academic setting —

was suppressed. The expression of his thoughts was censored before its publication.

This is an overly broad prior restraint on speech. This Court has emphasized that

"[a]ny system of prior restraints of expression comes to this Court bearing a heavy

presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan,

supra, at 70...” (internal quotation masks omitted), Freedman v. Maryland, 380 US

51, 57 (1965), and this Court “(has) tolerated such a system only where it operated

under judicial superintendence

and assured an almost immediate judicial

determination of the validity of the restraint. Kingsley Books, Inc. v. Brown, 354 US

436 (1957). In Tory v. Cochran, 544 US 734, 738 (2005), this Court stated that:

[It] amounts to an overly broad prior restraint upon speech,

lacking plausible justification. See Nebraska Press Assn. v.

Stuart, 427 U. S. 539, 559 (1976) ("[P]rior restraints on speech

and publication are the most serious and the least tolerable

infringement on First Amendment rights"); Pittsburgh Press Co.

v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376, 390

(1973) (a prior restraint should not "swee[p]" any "more broadly

than necessary"). As such, the Constitution forbids it. See Carroll

v. President and Comm'rs of Princess Anne, 393 U. S. 175, 183184 (1968) (An "order" issued in "the area of First Amendment

rights" must be "precis[e]" and narrowly "tailored" to achieve the

"pin-pointed objective" of the "needs of the case"); see also Board

of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.

S. 569, 575, 577 (1987) (regulation prohibiting "all 'First

Amendment activities'" substantially overbroad).

Id. at 738. “(A) man can be regarded as an individual and not as a function of the

state only if he is protected to the largest possible extent in his thoughts and in his

beliefs as the citadel of his person”. American Communications Assn. v. Douds, 339

US 382, 421 (1950) (emphases added).

Thus, the Fifth Circuit’s decision rejecting a particular individual Petitioner’s

using “I think” conflicts with this Court’s precedents. S. Ct. Rule 10(c).

IV. The Fifth Circuit Has Entered A Decision, Applying Garcetti v. Ceballos

To Academic Setting, In Conflict With The Decisions Of Other Circuits’

On The Same Important Matter.

Dissenting in Garcetti v. Ceballos, 547 US 410, 438 (2006), Justice Souter wrote

“I have to hope that today’s majority does not mean to imperil First Amendment

protection of academic freedom in public colleges and universities... ‘pursuant to . . .

official duties.’” Id. at 438. In response, Justice Anthony Kennedy — the author of the

majority opinion in Garcetti, stated that:

We need not, and for that reason do not, decide whether the

analysis we conduct today would apply in the same manner to a

case involving speech related to scholarship or teaching.

Id, at 425. In Adams u. Trustees of the Univ. of NC-Wilmington, 640 F. 3d 550, 564

(4th Cir. 2011), the Fourth Circuit stated that:

Applying Garcetti to the academic work...under the facts of this

case could place beyond the reach of First Amendment protection

many forms of public speech or service...That would not appear

to be what Garcetti intended, nor is it consistent with our long

standing recognition that no individual loses his ability to speak

as a private citizen by virtue of public employment.

Id. at 564. The Ninth Circuit also held that Garcetti does not apply to academic

setting, explaining that:

We conclude that Garcetti does not—indeed, consistent with the

First Amendment, cannot—apply to teaching and academic

writing that are performed “pursuant to the official duties” ...We

hold that academic employee speech not covered by Garcetti is

protected under the First Amendment, using the analysis

established in Pickering.

Demers v. Austin, 746 F. 3d 402, 412 (9th Cir. 2014). The proceeding here involves

the same issue on academic freedom as well, but the Fifth Circuit applied Garcetti to

academic setting, stating that "... (n)or did Appellant speak to a matter of public

concern when he used the phrase ‘I think’ in work-related emails”. Thus, the Fifth

Circuit’s decision conflicts with both Fourth Circuit’s and Ninth Circuit’ decisions on

the same matter of academic setting. S. Ct. Rule 10(a). See also supra at 15-18.

V. The Fifth Circuit’s Analysis Holding Petitioner’s Speech Unprotected

When He, Outside The Course Of Performing His Official Duties, Spoke

On Research Misconduct Over An External Event In The International

Research Community Conflicts With the Decisions of this Court.

As this Court stated in Connick v. Myers, 461 U.S. 138, 146 (1983), matters of

public concern are those which can be fairly considered as relating to any matter of

political, social, or other concern to the community. Speech which discloses any

evidence of corruption, impropriety, or other malfeasance on the part of... officials, in

terms of content, clearly concerns matters of public import. Id. at 146. As this Court

explained in Pickering v. Board of Education, 391 U. S. 563, 574 (1968), statements

by public officials on matters of public concern must be accorded First Amendment

protection despite the fact that the statements are directed at their nominal

superiors. Id. at 574. In Garcetti v. Ceballos, 547 US 410, 423-24 (2006), this Court

stated that “(e)mployees who make public statements outside the course of

performing their official duties retain some possibility of First Amendment protection

because that is the kind of activity engaged in by citizens who do not work for the

government. The same goes for...discussing politics with a co-worker”. Id. at 423-24

(2006); citing Rankin v. McPherson, 483 U. S. 378 (1987).

In Lane v. Franks, this Court again declared that “citizens do not surrender

their First Amendment rights by accepting public employment”. Lane v. Franks, 134

S. Ct. 2374 (2014). The Court stated that “the First Amendment protection of a

public employee’s speech depends on a careful balance between the interests of the

[employee], as a citizen, in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Id.; citing Pickering v. Board of Ed. of

Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) (internal

quotations omitted). The Court further stated that “(t)here is considerable value,

moreover, in encouraging, rather than inhibiting, speech by public employees. For

[government employees are often in the best position to know what ails the agencies

for which they work.” Lane v. Franks, 134 S. Ct. 2374 (2014); quoting Waters v.

Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality

opinion) (internal quotations omitted). The Court then cited “a two-step inquiry into

whether a public employee's speech is entitled to protection” as Garcetti described

whether “the employee spoke as a citizen on a matter of public concern” and “the

relevant government entity had an adequate justification for treating the employee

differently from any other member of the general public.” Lane v. Franks, 134 S. Ct.

2378 (2014); quoting Garcetti v. Ceballos, 547 U. S. 418 (2006). Respondents rightly

conceded that it was not Petitioner’s duty at the time to report research misconduct

because the related policy requiring Petitioner to make a such report was

“implemented in October 2019”. Thus, Petitioner’s statements reporting research

misconduct at the time was speaking as a citizen, and “(t)he First Amendment limits

an employer’s regulation of speech in the workplace ‘[s]o long as employees are

speaking as citizens about matters of public concern.’ ” App. 10a; quoting Garcetti v.

Ceballos, 547 U.S. 410, 419 (2006).

The Fifth Circuit’s own precedents also held that “matters of public concern

are those which can be fairly considered as relating to any matter of political, social,

or other concern to the community.” Alexander v. Beds, 392 F.3d 138, 142 (5th Cir.

2004) (internal quotations omitted); quoting Branton v. City of Dallas, 272 F.3d 730,

739 (5th Cir. 2001); quoting Connick v. Myers, 461 U.S. 138, 146 (1983). Petitioner’s

statements on research misconduct, including and focusing in Mitsuya’s forging co

author’s consent to submit to international research journal for consideration for

publication and making false statements, as conceded by Tim Huang, clearly

concerns matters of public concern and are protected speech. See e.g. Office of Public

Affairs, Duke University Agrees to Pay U.S. $112.5 Million to Settle False Claims Act

Allegations Related to Scientific Research Misconduct, U.S. Department of Justice

(March 25, 2019), https://www.iustice.gov/opa/pr/duke-umver8itv-agree9-pav-iJS1125-m.illion-settle-false-elaims-act-allegations-reJated:

Sheila

Kaplan,

Duke

University to Pay $112.5 Million to Settle Claims of Research Misconduct, N.Y.

Times

(March

25,

2019),

https://www.nvtimes.com/2019/03/25/science/duke-

settlG.ment-research.htm3. In fact, Petitioner’s statements “(t)his manuscript had

been submitted without my permission and there was materially false statement

regarding Authors’ Contributions in this manuscript as well” directed to the Editorin-Chief of Cancer Research resulted in immediate rejection of the manuscript. The

fact that Petitioner conveyed the same statements to external research community

and it resulted in rejection of the manuscript defeated Respondents’ arguments and

the Fifth Circuit’s holding that Petitioner “did not speak to a matter of public

concern when he reported Mitsuya’s alleged misconduct, as this reporting stemmed

from Appellant’s belief that he was entitled to first authorship of the research

paper”. App. 10a. Petitioner lost his authorship entirely when he notified the Editorin-Chief of Cancer Research of the same statements, i.e. his internal report on

Mitsuya’s research misconduct. Petitioner’s statements, unrelated to his official

duties, on research misconduct over an external event in the international research

community clearly concern matters of public important and deserve full

constitutional protection. On the other hand, Defendants here did not, and cannot,

have “an adequate justification for treating the employee differently from any other

member of the general public”. Garcetti v. Ceballos, 547 U. S. 418 (2006). App. 44a49a. Thus, the Fifth Circuit’s decision again conflicts with this Court’s precedents.

S. Ct. Rule 10(c).

VI. The Fifth Circuit’s Analysis Holding the Petitioner Has No Standing To

Obtain Declaratory And Injunctive Relief Has So Far Departed From

The Accepted And Usual Course Of Judicial Proceedings As To Call For

An Exercise Of This Court’s Supervisory Power.

Here, Petitioner allege that he was unlawfully retaliated by Tim Huang, as

determined by UTHSCSA, when Petitioner, outside the course of performing his

official duties, made an internal report on research misconduct over an external event

in the international research community. App. 44a-49a; see also supra at 19-22. The

Fifth Circuit’s decision denying Petitioner’s Speech to be protected. Id. When this

case was pending, UTHSCSA implemented a new policy, in October 2019, making

internal report on research misconduct official duties of employees like Petitioner,

forcing Petitioner either to comply with the policy by making internal report on other

research misconduct as he alleged in his pleadings this case and subject himself to

unlawful retaliation as occurred and determined by UTHSCSA here or not to comply

with the policy by knowingly not making any internal report on research misconduct

but subject himself to disciplinary actions. Thus, Petitioner was suffering ongoing

violation of federal law.

In their Answering Brief to the Fifth Circuit, Respondents claimed that

Petitioner “cannot rely on Ex parte Young’s limited exception to Eleventh Amendment

immunity for official capacity claims” and that the “district court properly found that

the Ex parte Young did not apply to Huang’s claims, because he did “not sufficiently

allegef] an ‘ongoing violation of federal law,”’ nor is his requested relief

“‘declaratory or injunctive in nature and prospective in effect.’”

In Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S.

635, 645 (2002), this Court stated that, in determining whether the Ex parte Young

exception applies, a court need only conduct “a straightforward inquiry into whether

[the] complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Id. at 645. The Fifth Circuit’s own precedent also

showed the same. See e.g. McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 416-17

(5th Cir. 2004). However, here, the Fifth Circuit analysis holding that Petitioner has

no standing for declaratory or injunctive relief on, inter alia, UTHSCSA’s new policy

and terminating Individual Respondents including Tim Huang, Potter, Hester,

Mistuya and Chen, and dismissed claims against Henrich in his official capacities.

Thus, the Fifth Circuit again has so far departed from the accepted and usual course

of judicial proceedings... as to call for an exercise of this Court’s supervisory power”.

S. Ct. Rule 10(a). Moreover, the Fifth Circuit analysis holding that Petitioner’s

“requested injunctive relief’ is “outside what (the district court) can order” (App. 9a,),

also departed from the accepted and usual course of judicial proceedings, and it’s

undisputable that to retract Tim Huang’s false statements attacking Petitioner’s

professional and personal characters is not just to order “the destruction of records”

(Id.; see also App. 29a).

VII. The Fifth Circuit’s Analysis On Texas Tort Claims Act Conflicts With

Texas Supreme Court’s Decision.

Texas Supreme Court hold that “traditional scope-of-employment analysis

in respondeat superior cases, which concerns only whether the employee is

discharging the duties generally assigned to [the employee].” Laverie v. Wetherbe,

517 SW 3d 748, 753 (Tex. 2017) (internal quotation omitted). Tim Huang’s calling

staff meetings to threaten termination, ordering Petitioner to “sit by his desk”

depriving Petitioner’s liberty in the lab, making other defamatory statements

during staff meetings and/or in emails to HR and/or other personal are not within

the scope of his employment, and in fact, he was investigated by UTHSCSA and

found of unlawful retaliation against Petitioner. App. 44a-49a. Tim Huang did not,

and cannot, claim that he himself was qualified/eligible to evaluate Petitioner’s

mental status, nor was Tim Huang discharging his duties assigned to him to

evaluate Petitioner’s mental status while Tim Huang falsely accused Petitioner of

being “quite unhealthy”. Chen clearly stated that Petitioner was “not under (his)

supervision at all”. Chen singled out and censored Petitioner, a scientist, from

using the common phrase “I think” to express his thoughts during research

discussion. Chen’s conduct is “so egregious, so outrageous, that it may fairly be said

to shock the contemporary conscience”. Morris v. Dearborne, 181 F.3d 657, 668 (5th

Cir. 1999). Therefore, UTHSCSA’s move, to dismiss those tort claims against

Individual Respondents pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(f),

should be dismissed. Thus, the District Court erred when it applied Tex. Civ. Prac.

& Rem. Code §101.106(f) to Petitioner’s claims against those Individual

Respondents in their Individual Capacity. App. 8a.

Additionally, the Fifth Circuit also stated that Moreover, Respondents, in

their Answering Brief to the Fifth Circuit Court, stating that:

Under Texas Civil Practice & Remedies Code § 101.106(e), if a

suit is filed “against both a governmental unit and any of its

employees, the employees shall immediately be dismissed on the

filing of a motion by the governmental unit.” Tex. Civ. Prac. &

Rem. Code Ann. § 101.106(e).

App. 7a-8a. Respondents argued, in their Answering Brief to the Fifth Circuit, that

Petitioner could not sue UTHSCSA. Moreover, Fourteen Amendment stated that:

No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

VIII. The Fifth Circuit’s Analysis On Petitioner’s Failure To State A Claim

Conflicts With Decisions Of This Court’s Precedents, Conflicts With

Other Circuits’ Decisions On The Same Matter, And Has So Far

Departed From The Accepted And Usual Course Of Judicial

Proceedings As To Call For An Exercise Of This Court’s Supervisory

Power.

The Fifth Circuit stated that “the district court’s findings as to lack of

jurisdiction under [Fed. R. Civ. P.] Rule 12(b)(1) do not cover all of Appellant’s claims”

(App. 9a) and that “(i)n particular”:

the district court’s jurisdictional findings do not cover Appellant’s

claims under 42 U.S.C. § 1983 against Appellees Huang, Chen,

Lin, Mitsuya, and Hester, and against Appellees Henrich and

Potter in their individual capacities to the extent that Appellant

seeks damages for these claims. The district court did not make

any findings in response to Appellees’ motion to dismiss argument

that individual Appellees acting in their official capacities are not

“person[s]” within the meaning of 42 U.S.C. § 1983.

Id. at 9a n.2. The Fifth Circuit then “turn(ed) to the district court’s reasons for

granting Appellees’ motion to dismiss for failure to state a claim”, under Fed. R. Civ.

P. Rule 12(b)(6), regarding First Amendment, Fourteenth Amendment Due Process,

Fourteenth Amendment Equal Protection, Title VII and Hostile Work Environment.

On First Amendment, the Fifth Circuit held that:

Appellant did not speak to a matter of public concern when he

reported Mitsuya’s alleged misconduct, as this reporting stemmed

from Appellant’s belief that he was entitled to first authorship of

the research paper. Nor did Appellant speak to a matter of public

concern when he used the phrase “I think” in work-related emails.

App. 10a. Petitioner has argued that he was speaking, outside the course of

performing his official duties, see supra at 19-22, to a matter of public concern he

made internal report on Mitusya’s misconduct and that he was selectively subject to

thought-probing at academic setting, see supra at 15-18.

On Fourteenth Amendment Due Process, the Fifth Circuit held that:

[I]n § 1983 suits alleging a violation of the Due Process Clause of

the Fourteenth Amendment, . . . [p]laintiffs must (1) assert a

protected ‘liberty or property’ interest and (2) show that they were

deprived of that interest under color of state law... Appellant has

not identified any constitutionally protected liberty or property

interest of which he was deprived.

App. 11a. Petitioner argued, in his Reply Brief to the Fifth Circuit, that First

Amendment Rights and freedom of movement are Petitioner’s liberty interest. See

e.g. Kolender v. Lawson, 461 US 352, 358 (1983); citing Shuttlesworth v. City of

Birmingham,, 382 U. S. 87, 91 (1965); Kent v. Dulles, 357 U. S. 116, 126 (1958);

Aptheker v. Secretary of State, 378 U. S. 500, 505-506 (1964).

On Fourteenth Amendment Equal Protection, the Fifth Circuit held that:

To state a claim under the Equal Protection Clause, a § 1983

plaintiff must allege that a state actor intentionally discriminated

against the plaintiff because of membership in a protected class.

App. 11a. Petitioner was selectively subject to thought-probing at academic setting

(see supra at 15-18), and discriminated on his non-religiosity (see supra at 13-14).

On Title VII claim, App. 12a, Petitioner has argued that he had made exactly

factual pleadings requested by the Fifth Circuit Court.

See supra at 14-15. On

Hostile Work Environment claim, App. 12a-13a, Petitioner has argued that he was

speaking, outside the course of performing his official duties, to a matter of public

concern when he made internal report on Mitusya’s misconduct (see supra at 19-22)

and that he was selectively subject to thought-probing at academic setting (see supra

at 15-18).

Additionally, the Fifth Circuit sated that Petitioner “merely makes

conclusory assertions in support of this argument” on interlocutory decisions

although Petitioner not only claims, inter alia, that Respondent never received any

mandatory initial disclosures from Respondent UTHSCSA and that UTHSCSA

responded that with “Plaintiff has not provided Defendants with his initial

disclosures”, which is explicitly excluded in Fed. R. Civ. P. Rule 26(a)(1)(D).

The Fifth Circuit again has not only “[repeatedly] decided an important

federal question in a way that conflicts with relevant decisions of this Court”, S. Ct.

Rule 10(c), it also “has entered a decision in conflict with the decision of another

United States court of appeals on the same important matter”, S. Ct. Rule 10(a),

“has decided an important federal question in a way that conflicts with a decision

by a state court of last resort”, Id., and “has so far departed from the accepted and

usual course of judicial proceedings... as to call for an exercise of this Court’s

supervisory power”, Id.

CONCLUSION

The petition for writ of certiorari should be GRANTED.

Respectfully submitted,

Guangcun Huang, Pro Se

PO Box 1004

Fremont, CA 94538

(210) 589-5684

August 23, 2021.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.