Full Opinion (html_with_citations)

Case: 22-40059     Document: 00516897231         Page: 1    Date Filed: 09/15/2023




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

                                ____________                                 FILED
                                                                     September 15, 2023
                                 No. 22-40059                           Lyle W. Cayce
                                ____________                                 Clerk

   Timothy Jackson,

                                                            Plaintiff—Appellee,

                                      versus

   Laura Wright; Milton B. Lee; Melisa Denis; Mary
   Denny; Daniel Feehan; Et al.

                                          Defendants—Appellants.
                  ______________________________

                  Appeal from the United States District Court
                       for the Eastern District of Texas
                            USDC No. 4:21-CV-33
                  ______________________________

   Before Elrod, Ho, and Oldham, Circuit Judges.
   Andrew S. Oldham, Circuit Judge:
          Timothy Jackson, a professor at the University of North Texas, sued
   eight members of the UNT Board of Regents in their official capacities for
   First Amendment retaliation. The Board defendants moved to dismiss under
   Rule 12(b)(1). The district court denied their motion to dismiss. We affirm.
                                        I.
          UNT’s Board is composed of nine members who are appointed by the
   Texas Governor and confirmed by the Texas Senate. The Board serves as the
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   governing body for UNT. And the Board has delegated to each constituent
   institution the obligation to “publish policies and procedures specifically
   related to faculty hiring, promotion, tenure, evaluation, leave, compensation,
   governance, discipline, a faculty grievance process, and such other policies
   and procedures required by these Regents Rules.” The Univ. of N.
   Tex.    Sys.     Bd.    of    Regents       Rules,        Rule 6.201 (2007),
   https://www.untsystem.edu/boardregents/documents/rr/rr_06.200_polic
   y_manual.pdf (last visited Sept. 15, 2023) [hereinafter “UNT Regents
   Rules”].
          Jackson is a music theory professor at UNT and a leading expert on
   the Austrian music theorist Heinrich Schenker. He is also the director of the
   Center for Schenkerian Studies and the founder of the Journal of Schenkerian
   Studies. The Journal is funded by UNT and published by the UNT Press.
          In July 2020, the Journal hosted a symposium. Professor Jackson
   published an article defending Schenker against charges of racism by Phillip
   Ewell, a black professor from a different college. A few days after the Journal
   published its symposium issue, several UNT graduate students circulated a
   statement condemning Jackson, criticizing the Journal for “platforming”
   Jackson’s “racist sentiments,” and lamenting that Jackson’s “past and
   present” “actions” “are particularly racist and unacceptable.” ROA.298–
   99. A Multiple UNT faculty members signed a statement that endorsed the
   graduate students’ letter and stated that certain articles in the symposium
   were “replete with racial stereotyping and tropes.” ROA.300–31.
          John Richmond, the Dean of the College of Music, announced that the
   College of Music would be launching a “formal investigation into the
   conception and production of” the Journal’s symposium issue. ROA.336.
   UNT Provost Jennifer Cowley appointed an ad hoc panel of five faculty
   members who currently served or had served as scholarly journal editors.




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         After interviewing eleven individuals (including Jackson and others
   involved in the editorial process), the panel produced a report. The report
   concluded that the Journal did not observe “the standards of best practice in
   scholarly publication” in producing the symposium issue and made
   recommendations that the Journal should implement. ROA.293. Specifically,
   the panel found a power disparity between the Journal’s editor (typically a
   graduate student) and the editorial advisor (Jackson). The panel also
   concluded that the Journal had not followed clear procedures for the
   symposium and erred by not inviting Ewell to respond.
         When she received the panel’s report, Provost Cowley sent Jackson a
   letter instructing him to “develop of a plan to address the recommendations”
   and submit that plan to Chairman Benjamin Brand, the Chair of the Music
   Department, and Dean Richmond for approval. She gave Jackson a deadline
   to submit his plan. ROA.359. One week prior to the deadline, Chairman
   Brand met with Jackson. Chairman Brand informed Jackson that he could not
   “support a plan according to which [Jackson] would remain involved in the
   day-to-day operations of the journal.” ROA.361. According to Jackson’s
   account of the conversation:
         Dr. Benjamin Brand (Professor Jackson’s department chair)
         informed Professor Jackson that he would be removed from the
         Journal and that the university would eliminate resources
         previously provided to the Journal and Center for Schenkerian
         Studies. ROA.30.
         Jackson timely submitted his plan. In the plan, he made several
   recommendations on how the Journal could be improved and agreed with the
   panel that the Journal editor should be a “full time, tenured faculty member
   whether at UNT or at an outside institution.” ROA.537. After Jackson
   submitted his plan, Provost Cowley, in consultation with Dean Richmond
   and Chairman Brand, charged the department with launching a national




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   search for a new editor-in-chief for the Journal who is a full-time tenured
   faculty member. That editor would then determine the membership of the
   editorial board (including Jackson’s possible role in it) and policies for future
   publications.
          Jackson sued the Board defendants, among others, alleging a First
   Amendment retaliation claim under
42 U.S.C. § 1983
. As against the Board
   defendants, Jackson sought only injunctive and declaratory relief. The Board
   defendants moved to dismiss based on sovereign immunity, lack of standing,
   and failure to state a claim. The district court concluded that it needed
   evidence of Jackson’s status with the Journal before it could rule. At an
   evidentiary hearing, in October 2021, Jackson stated that the Journal has been
   “essentially on ice” since 2020 and has not published since the symposium
   issue. ROA.945. He testified that he was “removed from the journal
   completely” and has had “nothing further to do with the [J]ournal” since the
   panel’s report. ROA.948. Dean Richmond (who also testified) agreed that
   the Journal was “on pause” but claimed this was only until a new editor-in-
   chief could be found. ROA.997–99.
          The district court denied the defendants’ motions to dismiss. The
   Board defendants immediately appealed the denial of sovereign immunity
   under the collateral order doctrine. See P.R. Aqueduct & Sewer Auth. v. Metcalf
   & Eddy, Inc.,
506 U.S. 139, 147
 (1993) (collateral order doctrine allows
   immediate appellate review of order denying sovereign immunity). They also
   appealed the denial of dismissal for lack of standing. See Escobar v. Montee,
895 F.3d 387, 391
 (5th Cir. 2018) (appellate court has pendant appellate
   jurisdiction over other parts of the appeal that are “inextricably intertwined”
   with part of appeal authorized by the collateral order doctrine).
          We review the district court’s standing and sovereign immunity
   rulings de novo. See City of Austin v. Paxton,
943 F.3d 993, 997
 (5th Cir. 2019).




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                                          II.
          We first (A) conclude sovereign immunity does not bar Jackson’s
   First Amendment claim. Then we (B) conclude Jackson has standing to bring
   his First Amendment claim against the Board defendants.
                                          A.
          “Sovereign immunity bars private suits against nonconsenting states
   in federal court.” Haverkamp v. Linthicum,
6 F.4th 662, 669
 (5th Cir. 2021)
   (per curiam). The doctrine also bars “suits against state actors in their official
   capacities that are effectively suits against a state.”
Ibid.
 As we have
   explained:
          The Supreme Court, however, carved out an exception to state
          sovereign immunity in Ex parte Young,
209 U.S. 123
, 159–60
          (1908), permitting suits against state actors whose conduct
          violates federal law. The rule is based on the legal fiction that a
          sovereign state cannot act unconstitutionally, and therefore,
          when a state actor enforces an unconstitutional law, he is
          stripped of his official clothing and becomes a private person
          subject to suit.
Ibid.
 (quotation omitted).
          Ex parte Young created a narrow doorway through the sovereign
   immunity defense. To turn the key on the Ex parte Young door, a plaintiff
   must sue the right defendants and ask for the right remedy. Here, Jackson has
   done both.
          First, the right defendants. Under Ex parte Young, the officers who are
   sued must have “some connection with the enforcement” of the challenged
   law or policy. Ex parte Young,
209 U.S. at 157
. But how much of a connection
   is needed? As this Court has repeatedly observed, “our circuit has struggled




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   to define this ‘connection’ requirement.” Lewis v. Scott,
28 F.4th 659, 663
   (5th Cir. 2022); Tex. All. for Retired Ams. v. Scott (“TARA”),
28 F.4th 669, 672
 (5th Cir. 2022) (same observation); Tex. Democratic Party v. Abbott
   (“TDP”),
978 F.3d 168, 179
 (5th Cir. 2020) (noting that the Fifth Circuit has
   not “spoken with conviction about all the relevant details of the ‘connection’
   requirement”). Even so, “some guideposts have emerged.” TARA, 28 F.4th
   at 672. Two are relevant here.
            Guidepost 1. All that is required is a mere “scintilla of ‘enforcement’
   by the relevant state official with respect to the challenged law.” City of
   Austin,
943 F.3d at 1002
; cf. Whole Woman’s Health v. Jackson,
142 S. Ct. 522, 534
 (2021) (“While Ex parte Young authorizes federal courts to enjoin certain
   state officials from enforcing state laws, the petitioners do not direct this
   Court to any enforcement authority the attorney general possesses in
   connection with S.B. 8 that a federal court might enjoin him from
   exercising.” (emphasis added)). Here, the Board defendants have the
   required “scintilla of enforcement” due to their governing authority over
   UNT. See supra UNT Regents Rules (the Board defendants have the
   ultimate “governance” authority at UNT). The Board defendants nowhere
   deny that their governing authority satisfies the “scintilla of enforcement”
   standard; in fact, they never even acknowledge that standard in their opening
   brief.
            Guidepost 2. We further know that an official must have more than
   “the general duty to see that the laws of the state are implemented.” City of
   Austin, 943 F.3d at 999–1000 (quoting Morris v. Livingston,
739 F.3d 740, 746
   (5th Cir. 2014)); accord TARA, 28 F.4th at 672. For example, a state attorney
   general lacks an Ex parte Young enforcement nexus based on his “general
   duty to enforce the law.” TDP,
978 F.3d at 181
. And a governor’s role in
   promulgating an executive order alone is not sufficient. See Mi Familia Vota
   v. Abbott,
977 F.3d 461, 467
 (5th Cir. 2020); see also Haverkamp,
6 F.4th at 
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   670 (a committee’s authority to formulate and promulgate a policy also is not
   sufficient). But those cases are distinguishable. In those cases, the sued state
   officials had no role whatsoever in the alleged constitutional violations—not
   even a supervisory role over the individuals who were allegedly violating
   constitutional rights. Contrariwise here, the Board defendants’ have direct
   governing authority over the UNT officials that are allegedly continuing to
   violate Jackson’s First Amendment rights, including authority to
   countermand the decisions of the subordinate UNT officials. And in addition
   to their direct supervisory authority over the UNT officials who took the
   actions at issue, the Board defendants themselves ignored a letter Jackson
   wrote to the Chair of the Board, notifying them of his removal from the
   Journal and seeking relief from the Board for the ongoing violation of his First
   Amendment rights.
          The Board defendants’ principal counterargument is that Jackson has
   “not alleged facts demonstrating a connection between the Board defendants
   and any alleged First Amendment retaliation.” Blue Br. 23. But state
   sovereign immunity is an affirmative defense, and plantiffs are not required
   to anticipate or plead around affirmative defenses. See Gomez v. Toledo,
446 U.S. 635, 640
 (1980). Rather, it was the Board defendants’ obligation to raise
   the defense. We cannot say at this juncture that Jackson impermissibly sued
   defendants protected by state sovereign immunity.
          Second, the right remedy. Under Ex parte Young, a court is permitted
   to “command[] a state official to do nothing more than refrain from violating
   federal law.” Va. Off. for Prot. & Advoc. v. Stewart,
563 U.S. 247
, 255 (2011).
   The Ex parte Young doctrine “applies only to prospective relief” and “does
   not permit judgments against state officers declaring that they violated
   federal law in the past.” P.R. Aqueduct,
506 U.S. at 146
. Here, Jackson
   properly requests only prospective relief:




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           i. declare that the university and its administrators are violating
           Professor Jackson’s rights under the First and Fourteenth
           Amendments by retaliating against him for his criticism of
           Phillip Ewell.
           ii. enjoin the members of the Board of Regents, along with
           their employees and subordinates, from taking any adverse
           action against Professor Jackson in response to the publication
           of the symposium or his criticisms of Professor Ewell.
   ROA.30. Jackson’s request for declaratory relief is focused on the legality of
   the university’s current actions, not its past behavior. And Jackson’s request
   for injunctive relief is also prospective given it would restrain the Board
   defendants from taking future actions that violate Jackson’s rights. See
   Stewart, 563 U.S. at 255 (“[W]hen a federal court commands a state official
   to do nothing more than refrain from violating the law, he is not the State for
   sovereign-immunity purposes.”).
          In sum, Jackson has “allege[d] an ongoing violation of federal law and
   seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub.
   Serv. Comm’n of Md.,
535 U.S. 635, 645
 (2002). Thus, at the motion to
   dismiss stage, sovereign immunity does not bar Jackson’s First Amendment
   claim against the Board defendants.
                                          B.
          Jackson also has standing to bring his First Amendment claim. For
   Article III standing, a plaintiff must have “(1) suffered an injury in fact,
   (2) that is fairly traceable to the challenged conduct of the defendant, and
   (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc.
   v. Robins,
578 U.S. 330, 338
 (2016) (citing Lujan v. Defs. of Wildlife,
504 U.S. 555
, 560–61 (1992)). The Board defendants concede that redressability runs
   with causation, see Blue Br. 38 n.15, and we agree on the facts of this case. So
   we turn first to injury in fact and then to causation.




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          To establish injury in fact, Jackson must show he “suffered ‘an
   invasion of a legally protected interest’ that is ‘concrete and particularized’
   and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,
578 U.S. at 339
 (quoting Lujan,
504 U.S. at 560
). Because Jackson is seeking
   prospective relief and not damages, he must allege a continuing (i.e., ongoing)
   or “imminent” future injury to establish standing. See City of Los Angeles v.
   Lyons,
461 U.S. 95, 102
 (1983) (“Past exposure to illegal conduct does not in
   itself show a present case or controversy regarding injunctive relief.”
   (quotation omitted)).
          Here, Jackson alleges a continuing injury—that he has been and
   continues to be banned by UNT from any continuing involvement with the
   Journal. Jackson “can no longer publish scholarship in the Journal that he
   considers a trademark of his life’s work, and if he took action to publish the
   work that is currently ‘on ice,’ he would face negative consequences imposed
   by UNT officials.” ROA.892. Jackson also alleges a future injury.
   Specifically, he alleges that the chair of his department told him that “the
   university would eliminate resources previously provided to the Journal and
   the Center.” ROA.30. At the motion to dismiss stage where we must accept
   all Jackson’s allegations as true, he has plainly alleged both a continuing and
   a future injury sufficient to confer standing for him to seek prospective relief.
          Next, causation. The second standing inquiry is whether these injuries
   are “fairly traceable” to the Board defendants. See Lexmark Int’l, Inc. v.
   Static Control Components, Inc.,
572 U.S. 118
, 134 n.6 (2014) (“Proximate
   causation is not a requirement of Article III standing, which requires only that
   the plaintiff’s injury be fairly traceable to the defendant’s conduct.”). The
   traceability and Ex parte Young issues discussed above involve similar
   questions. TDP, 961 F.3d at 401 (noting the “significant overlap between our
   standing and [Ex parte] Young analyses” (quotation omitted)). And for the
   reasons discussed in the preceding section, we conclude the alleged ongoing



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   actions of the UNT officials in removing Jackson from his role with the
   Journal and promising to eliminate resources previously provided to the
   Journal are “fairly traceable” to the Board defendants.
           The Board defendants argue that Jackson needed to allege specifically
   that they were personally and directly involved with the Journal or the panel
   investigation. But all Jackson needs to allege under Article III is that his First
   Amendment injuries are “fairly traceable” to the Board defendants—not
   that the Board defendants directly caused his injuries. See Lexmark,
572 U.S. at 134
 n.6.*
           AFFIRMED.




           _____________________
           *
              Given our conclusion that the district court has subject matter jurisdiction over
   Jackson’s First Amendment claim, all agree that the district court also has supplemental
   jurisdiction over Jackson’s defamation claim.




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