Tawakkol v. Vasquez ( 2023 )

Case: 22-50434 Document: 00516992437 Page: 1 Date Filed: 12/06/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 6, 2023
No. 22-50434 Lyle W. Cayce
____________ Clerk
Sammy Tawakkol,
Plaintiff—Appellee/Cross-Appellant,
versus
Manager Sheila Vasquez, in her official capacity as Manager of the
Texas Department of Public Safety-Sex Offender Registration Bureau;
Director Steven McCraw, in his official capacity as Director of the
Texas Department of Public Safety,
Defendants—Appellants/Cross-Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-513
______________________________
Before Haynes and Engelhardt, Circuit Judges, and deGravelles,
District Judge. *
Haynes, Circuit Judge:
The petition for rehearing is denied. We substitute this opinion for
our prior opinion.
_____________________
*
United States District Judge for the Middle District of Louisiana, sitting by
designation.
Case: 22-50434 Document: 00516992437 Page: 2 Date Filed: 12/06/2023
No. 22-50434
Sammy Tawakkol sued two Texas state officials, asserting that they
violated his right to procedural due process when they notified him that he
was required to register as a sex offender under Texas law. After a bench
trial, the district court entered judgment in Tawakkol’s favor. Because we
conclude that Tawakkol’s suit is barred by sovereign immunity, we
VACATE and REMAND with instructions to dismiss for lack of
jurisdiction.
I. Background
This case implicates both the federal and Texas sex offender
registration systems, so we begin with a brief overview of each. At the federal
level, the Sex Offender Registry and Notification Act (“SORNA”) sets out
a “comprehensive national system” for sex offender registration. 34 U.S.C.
§ 20901. SORNA requires any individual convicted of a qualifying “sex
offense” to register as a “sex offender.” Id. §§ 20913(a), 20914. Qualifying
“sex offenses” include, inter alia, certain “military offense[s] specified by
the [United States] Secretary of Defense.” Id. § 20911(5)(A)(iv).
Although SORNA applies only at the federal level, Congress grants
federal funds to state jurisdictions that agree to maintain their own parallel
sex-offender registration and community-notification laws. See id.
§§ 20912(a), 20927. Relevant here is Texas’s SORNA-compliant sex
offender registration system, Texas Code of Criminal Procedure article 62.
Under that system, an individual must register as an “extrajurisdictional”
registrant in Texas if he would be “required to register as a sex offender
under . . . federal law or the Uniform Code of Military Justice.” TEX. CODE
CRIM. PROC. art. 62.001(10)(A)(ii).
We turn now to the facts of this case, which are straightforward and
undisputed. When he was a cadet at the United States Air Force Academy,
Tawakkol was caught sneaking into women’s restrooms and recording videos
2
Case: 22-50434 Document: 00516992437 Page: 3 Date Filed: 12/06/2023
No. 22-50434
of female cadets while they were using the toilet. Tawakkol pleaded guilty to
violating Article 120c(a)(2) of the Uniform Code of Military Justice. The
Secretary of Defense has designated Article 120c(a)(2) as a SORNA-
qualifying “sex offense.” So, as a result of this conviction, Tawakkol was
required to register as a sex offender under SORNA.
Tawakkol later disenrolled from the Academy and moved to Houston,
Texas. Once there, state officials determined that Tawakkol would be
required to register as a sex offender under Texas’s system as well. They
concluded that Tawakkol’s status as a “sex offender” under federal law
rendered him an extrajurisdictional sex offender under state law—in other
words, his duty to register in Texas hinged solely on his duty to register under
SORNA.
When state officials notified Tawakkol of their determination,
Tawakkol filed this suit against two Texas Department of Public Safety
employees 1 (the “State Defendants”) under 42 U.S.C. §§ 1983 and 1988. In
his complaint, Tawakkol asserted that he had not committed a registrable sex
offense—therefore, he alleged that the State Defendants’ registration
determination violated his procedural due process rights under the
Fourteenth Amendment.
After a bench trial, the district court issued findings of fact and
conclusions of law determining that Tawakkol was entitled to injunctive
relief. Rather than address the procedural due process arguments as pleaded
in Tawakkol’s complaint, the district court’s conclusions instead hinged on
its interpretation of federal law. The district court first analyzed the language
_____________________
1
Specifically, Tawakkol sued Sheila Vasquez, the Manager of the Texas
Department of Public Safety’s Sex Offender Registration Bureau, and Steven McCraw, the
Director of the Texas Department of Public Safety, in their official capacities.
3
Case: 22-50434 Document: 00516992437 Page: 4 Date Filed: 12/06/2023
No. 22-50434
of Congress’s delegation of authority to the Secretary of Defense to designate
certain crimes as SORNA-qualifying “sex offenses.” It then concluded that
the Secretary of Defense had exceeded the scope of that authority in
designating Article 120c(a)(2) as a “sex offense.” The court thus reasoned
that Tawakkol had no duty to register under federal law—therefore the State
Defendants lacked any basis to classify him as an extrajurisdictional offender
under state law.
Based on these conclusions, the district court issued a final judgment
(1) declaring that Tawakkol was “not required to register as a sex offender
under federal or military law,” and, accordingly, (2) permanently enjoining
the State Defendants from requiring Tawakkol to register in Texas. The
State Defendants appealed, and Tawakkol cross-appealed.
II. Discussion
Tawakkol invoked federal question jurisdiction under 28 U.S.C.
§ 1331 and jurisdiction over the claims for declaratory and injunctive relief
under 28 U.S.C. §§ 2201 and 1343(a), respectively. On appeal, however, the
State Defendants contend that the district court lacked subject matter
jurisdiction because Tawakkol’s claims are barred by sovereign immunity.
Accordingly, our analysis begins and ends with that threshold issue.
We examine jurisdictional issues, such as sovereign immunity, de
novo. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). Sovereign
immunity under the Eleventh Amendment precludes suits by private citizens
against states in federal court. Id. This bar extends not only to the state itself,
but also to claims against “state officials” in their official capacity when the
state is the real party in interest. Id. Here, Tawakkol is suing state officials
4
Case: 22-50434 Document: 00516992437 Page: 5 Date Filed: 12/06/2023
No. 22-50434
who have not waived sovereign immunity. 2 Accordingly, his claims are
barred in federal court unless an exception to sovereign immunity applies.
Tawakkol asks the court to apply the exception to sovereign immunity
carved out by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908).
This exception permits a plaintiff to seek an injunction “in federal court [to]
prevent[] state executive officials from enforcing state laws that are contrary
to federal law.” Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021)
(citing Ex parte Young, 209 U.S. at 159–60). In Green Valley, we made clear
that “[f]or Young to apply, three criteria must be satisfied: (1) A plaintiff must
name individual state officials as defendants in their official capacities; (2)
the plaintiff must allege an ongoing violation of federal law; and (3) the relief
sought must be properly characterized as prospective.” 969 F.3d at 471
(alterations accepted) (internal citations and quotation marks omitted).
Tawakkol argues that his suit satisfies these requirements because he is
seeking injunctive and declaratory relief against the individuals tasked with
enforcing Texas’s sex offender registration requirements.
Before we address the merits of Tawakkol’s argument, we begin by
explaining Ex parte Young’s legal foundations. Ex parte Young is an exception
to sovereign immunity that comes into play when private litigants seek to
prevent state officials from enforcing an unconstitutional state law. See 209
_____________________
2
The State Defendants concede that they raise sovereign immunity for the first
time on appeal. Ordinarily, a failure to raise an issue below would constitute waiver, but
“[s]overeign immunity is jurisdictional,” and “[a] lack of subject matter jurisdiction may
be raised at any time.” Cozzo v. Tangipahoa Par. Council–President Gov’t, 279 F.3d 273,
280 (5th Cir. 2002) (quotation omitted) (second alteration in original).
Of course, state sovereign immunity is waivable, see Meyers ex rel. Benzing v. Texas,
410 F.3d 236, 241 (5th Cir. 2005), but there’s no indication that the State Defendants
waived sovereign immunity here, see id. (recognizing that a state must make a “‘clear
declaration’ that it intends to submit itself to federal court jurisdiction”).
5
Case: 22-50434 Document: 00516992437 Page: 6 Date Filed: 12/06/2023
No. 22-50434
U.S. at 159–68. It is rooted in the legal fiction that, in such circumstances,
the defendant-official is “stripped of his official or representative character
and is subjected in his person to the consequences of his individual conduct.”
Id. at 160; see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 272–73
(1997) (citing Ex parte Young, 209 U.S. at 159–60). In other words, the official
“is ‘not the State for sovereign-immunity purposes’ when ‘a federal court
commands [him or her] to do nothing more than refrain from violating federal
law.’” Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020)
(alteration in original) (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
247, 255 (2011)).
This fiction, the Supreme Court has said, is “necessary to permit the
federal courts to vindicate federal rights and hold state officials responsible
to ‘the supreme authority of the United States.’” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, 209
U.S. at 160); see also Green v. Mansour, 474 U.S. 64, 68 (1985). But the
Supreme Court has also instructed that the exception must be “narrowly
construed” to serve only that original purpose. See, e.g., Pennhurst, 465 U.S.
at 114 n.25 (observing that “it is a very narrow exception that will allow suit
only under the[se] standards”); Va. Off. for Prot. & Advoc., 563 U.S. at 255
(noting that “[t]he doctrine is limited to that precise situation”); Papasan v.
Allain, 478 U.S. 265, 277 (1986) (stating that the exception is “tailored to
conform as precisely as possible to those specific situations”). Accordingly,
the Court has repeatedly declined to interpret the exception
“expansive[ly].” See, e.g., Pennhurst, 465 U.S. at 106 (declining to extend
where violation was based on state law); Edelman v. Jordan, 415 U.S. 651, 678
(1974) (declining to extend where plaintiff sought retroactive relief); Green,
474 U.S. at 71 (declining to extend where the federal law violation was no
longer “ongoing”).
6
Case: 22-50434 Document: 00516992437 Page: 7 Date Filed: 12/06/2023
No. 22-50434
Ex parte Young’s foundations and the Supreme Court’s subsequent
precedent lead us to conclude that it is inapplicable in this case—the relief
requested (1) falls outside the exception’s narrow confines, (2) does not
serve the purpose of the exception, and (3) is unsupported by any caselaw.
To start, unlike Ex parte Young, the injunctive relief that the district
court ordered did not enjoin the State Defendants from enforcing a state law
that violated federal law. To be sure, the district court ultimately did conclude
that the State Defendants could not require Tawakkol to register as a sex
offender under Texas law—but that conclusion was not based on a
determination that the state registration system was unconstitutional.
Rather, recall that Tawakkol was only required to register under Texas law
because he was required to register under a federal law, SORNA. 3
Accordingly, the relief issued by the district court (1) invalidated only federal
law and (2) prohibited the State Defendants from enforcing a state law merely
because it was consistent with that federal law. Such novel relief falls squarely
outside the narrow parameters articulated by Ex parte Young and its progeny.
See, e.g., 209 U.S. at 159–68; Pennhurst, 465 U.S. at 114 n.25; Va. Off. for Prot.
& Advoc., 563 U.S. at 255.
What’s more, applying the exception to Tawakkol’s suit would not
serve Ex parte Young’s purpose. Because the district court’s order
invalidated a federal statute—instead of affirming it—invoking the exception
here would not advance Ex parte Young’s aim of “promot[ing] the vindication
of federal rights.” Pennhurst, 465 U.S. at 105. Rather, applying the exception
_____________________
3
As noted above, the district court determined that the Secretary of Defense lacked
authority to designate the crime Tawakkol was convicted of as a sex offense under SORNA.
(Because we decide this case on jurisdiction, we do not address the merits of that
determination). So, it reasoned that, because Tawakkol had no duty to register as a sex
offender under federal law, the State Defendants lacked any basis to classify him as an
extrajurisdictional registrant under state law.
7
Case: 22-50434 Document: 00516992437 Page: 8 Date Filed: 12/06/2023
No. 22-50434
here would “stretch [Ex parte Young] too far” and “upset the balance of
federal and state interests that [the exception] embodies.” Papasan, 478 U.S.
at 277.
Tawakkol contends that he has met our standard addressed in Green
Valley Special Utility District v. City of Schertz, 969 F.3d 460 (5th Cir. 2020)
(en banc). As stated above, we held in Green Valley that “[f]or Young to
apply, three criteria must be satisfied: (1) A plaintiff must name individual
state officials as defendants in their official capacities; (2) the plaintiff must
allege an ongoing violation of federal law; and (3) the relief sought must be
properly characterized as prospective.” 969 F.3d at 471 (internal citations
and quotation marks omitted) (alterations accepted). But Green Valley did
not purport to expand Ex parte Young’s narrow parameters to cover the
claims at issue here. Green Valley turned on whether the plaintiff satisfied Ex
parte Young’s requirement that the relief sought must be prospective—an
issue that we need not reach here—and concluded that the plaintiff satisfied
that requirement for at least one, but not all, forms of relief that it sought. Id.
at 473. Our analysis does not deviate from Green Valley, which makes clear
that our analysis is correct by echoing the Supreme Court’s statement that
“we look to the substance rather than to the form of the relief sought and will
be guided by the policies underlying . . . Young.” 4 Green Valley, 969 F.3d at
471 (quoting Papasan, 478 U.S. at 279). Green Valley involved an attack on
state law, not federal law. While Tawakkol contends he meets these
standards, the reality is quite the opposite: the state is not performing an
ongoing violation of federal law, instead, he is contesting that federal law, as
_____________________
4
Although we quoted this statement in the portion of Green Valley dealing with
whether the relief that plaintiff sought was prospective, when the Supreme Court originally
issued this statement in Papasan, it was speaking about the Ex parte Young exception in
general. Compare Green Valley, 969 F.3d at 471 (quoting Papasan, 478 U.S. at 279) with
Papasan, 478 U.S. at 278–79.
8
Case: 22-50434 Document: 00516992437 Page: 9 Date Filed: 12/06/2023
No. 22-50434
applied by the Secretary of Defense, is itself incorrect. That is the whole
point we are making here: Ex parte Young is not about stopping states from
following federal law and determinations of same by federal officers. 5
Indeed, it is telling that Tawakkol fails to direct us to any authority—
from this court or elsewhere—applying Ex parte Young in a similar way.
Given the Supreme Court’s repeated insistence on the exception’s narrow
application and admonishments against broadening its reach, we decline to
extend Ex parte Young here. Accordingly, in the absence of any other
applicable exception, we conclude that sovereign immunity bars Tawakkol’s
claims against the State Defendants.
III. Conclusion
For the reasons discussed above, we VACATE the decision and
REMAND the case to the district court with instructions to dismiss for lack
of jurisdiction.
_____________________
5
We also note that, after we decided Green Valley, the Supreme Court stated in
Whole Women’s Health that the Ex parte Young exception applies to “prevent[] state
executive officials from enforcing state laws that are contrary to federal law.” Whole
Woman’s Health, 142 S. Ct. at 532 (citing Ex parte Young, 209 U.S. 159–60). As discussed,
Tawakkol’s claims do not meet this criterion.
9