Case: 19-30702 Document: 00515779056 Page: 1 Date Filed

No. 19-30702 c/w 19-30989

IN THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PRISCILLA LEFEBURE,

Plaintiff-Appellee,

v.

SAMUEL D’AQUILLA, 20TH JUDICIAL DISTRICT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY

AS DISTRICT ATTORNEY

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana

USDC No. 3:17-CV-1791

BRIEF OF RETIRED FEDERAL JUDGES AS AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE

SARA A. JOHNSON Louisiana Bar No. 31207

700 Camp Street New Orleans, LA 70130 (504) 528-9500 [email protected] Counsel for Amici Curiae

Case: 19-30702 Document: 00515779056 Page: 1 Date Filed: 03/12/2021

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... 1

INTEREST OF AMICI CURIAE ............................................................................... 2

ARGUMENT AND AUTHORITIES ........................................................................ 4

I. The panel opinion’s standing determination is almost certainly wrong. .................................................................................................. 5

II. The determinative process that led to the panel opinion is definitely

wrong. .................................................................................................. 9 CONCLUSION ........................................................................................................12

CERTIFICATE OF SERVICE ................................................................................14

CERTIFICATE OF COMPLIANCE .......................................................................15


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TABLE OF AUTHORITIES

CASES

Bailey v. Patterson, 369 U.S. 31 (1962) .................................................................... 6

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ........................................................... 7

DeShaney v. Winnebago County Dep't of Soc. Srvs., 489 U.S. 189 (1989) ..........8, 9

Duke Power Co. v. Carolina Envir. Study Group, Inc., 438 U.S. 59 (1978) ........5, 9

Elliot-Park v. Manglona, 592 F.3d 1003 (9th Cir. 2010) ......................................6, 8

Fajardo v. County of L.A., 179 F.3d 698 (9th Cir. 1999) .......................................... 8

Friends of the Earth, Inc. v. Laidlaw Envir. Srvs., Inc., 528 U.S. 167 (2000) .......... 9

Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000) ....................................... 8

Imbler v. Pachtman, 424 U.S. 409 (1976) ................................................................ 7

Jones v. Union County, TN, 296 F.3d 417 (6th Cir. 2002) ........................................ 8

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ................................................ 5, 6, 9

Owen v. City of Independence, 445 U.S. 622 (1980) ................................................ 7

Schroeder v. Hamilton School Dist., 282 F.3d 946 (7th Cir. 2002) .......................... 8

Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000) ...............................................8, 11

Watson v. City of Kansas City, 857 F.2d 690 (10th Cir. 1988) ................................. 8

Uzuegbunam v. Preczewski, 2021 WL 850106 (U.S. Mar. 8, 2021)…………….6, 9

RULES

Supreme Court Rule 10(a) ......................................................................................... 4

Federal Rule of Appellate Procedure 35(b) ............................................................... 4

OTHER AUTHORITIES

Alex Kozinski & James Burnham, You Say Dissental, I Say Concurral, 121 Yale

L.J. 601 (2012) ............................................................................................... 11-12


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INTEREST OF AMICI CURIAE The retired federal judges listed at the end of this statement respectfully

submit this brief as amici curiae in support of Plaintiff-Appellee.1 Amici are

interested in this case because of their decades of service to the federal judiciary,

which provides them a unique “both sides” perspective among practitioners on

issues of federal jurisdiction and court procedure. As former public servants, they

also have an ongoing commitment to fairness for all litigants, preserving the

public’s positive perception of the judiciary, and sound management of the federal

courts’ jurisdiction and decision-making processes. They are concerned that the

panel opinion dramatically curtails the federal courts’ civil rights jurisdiction, and

does so through a process that is ill-suited to such momentous work on a topic of

surpassing present importance.

The Honorable Alex Kozinski is former Chief Judge of the United States

Court of Appeals for the Ninth Circuit, which he served for 32 years, and former

Chief Judge of the Court of Federal Claims.

The Honorable F.A. Little, Jr. is former Chief Judge of the United States

District Court for the Western District of Louisiana, which he served for 21 years.

1 No person other than the amici or their counsel authored this brief or contributed money intended to fund its preparation or filing.


3

The Honorable Michael B. Mukasey is former Chief Judge of the United

States District Court for the Southern District of New York, which he served for 18

years. Afterwards, he served as the 81st Attorney General of the United States.


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ARGUMENT AND AUTHORITIES

Victims of sexual assault suffer a redressable injury-in-fact when a

jurisdiction’s persistent and discriminatory policy of underenforcing rape laws

causes their rape. They also suffer redressable injuries-in-fact when a

jurisdiction’s discriminatory non-prosecution of their specific attacker denies them

access to crime victim resources, exacerbates mental anguish, and causes

reasonable fear of re-victimization.

These are not—or at least should not be—terribly controversial propositions

and, fortunately, they rarely need be made. Of particular concern to amici,

however, is less the egregiousness of the panel’s error than the way in which it

made it. The panel published its opinion, even though there was no meaningful

adversarial testing of the propositions on which the panel expounded. The panel

also failed to acknowledge that it has put the Fifth Circuit into conflict with every

other federal Court of Appeals to address this and similar issues.

“Sleeper conflicts” like this should constitute nearly automatic grounds for

en banc review when brought to an appellate court’s attention. By failing to

acknowledge the circuit conflicts they create, sleeper conflicts are poor candidates

for correction by the Supreme Court, which prefers explicit and acknowledged

splits. When Courts of Appeals treat Federal Rule of Appellate Procedure

35(b)(1)(B) as effectively redundant of Supreme Court Rule 10(a) by requiring


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similar explicitness, they do the profession and the community a disservice by

burying judicial time bombs that the en banc court can and should assume as its

responsibility to defuse. When they do this in cases involving the federal courts’

jurisdiction, and particularly its civil rights jurisdiction, they disserve not just the

victims but public confidence in the judiciary.

I. The panel opinion’s standing determination is almost certainly wrong.

Nearly fifty years ago, the Supreme Court held 5-to-4 that a mother lacks

Article III standing to compel a district attorney to prosecute a deadbeat dad in the

hope that, once he gets out of prison, he will pay child support. Linda R.S. v.

Richard D., 410 U.S. 614, 614-15 (1973). The Court held that the mother “has

made no showing that her failure to secure support payments results from the

nonenforcement” of the deadbeat dad law. Id. at 618. As such, at least as the

Court later interpreted it, the mother’s claim failed for want of redressability. Duke

Power Co. v. Carolina Envir. Study Group, Inc., 438 U.S. 59, 79 n.24 (1978).

Ms. Lefebure does not seek to compel the District Attorney to prosecute her

rapist. She seeks damages for the harm she suffered as a result of the DA’s

policies, and the injunction she seeks is for reform of those policies. And, as

incommensurate as damages are to the pain and suffering of a rape victim,

monetary compensation is the classic form of redress in Anglo-American

jurisprudence and helps deter future misconduct. Indeed, as the Supreme Court


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recognized just last week, even nominal damages suffice to confer standing.

Uzuegbunam v. Preczewski, No. 19-968, 2021 WL 850106 (U.S. Mar. 8, 2021).

This case does not fall within the four corners of Linda R.S. or any other case

limiting Article III standing.

It doesn’t even fall within the oft-cited dictum that “a private citizen lacks a

judicially cognizable interest in the prosecution or nonprosecution of another.”

Linda R.S., 410 U.S. at 619.2 Ms. Lefebure does not claim damages based on the

non-prosecution of her attacker. Her claim is that she was raped because the rapist

knew the DA would not prosecute him and so he figured (rightly) he could get

away with it. She asserts as her harms the DA’s failure to protect her and her own

experience of discrimination.

The evolution of liability for discriminatory law enforcement since Linda

R.S. only strengthens the conclusion Ms. Lefebure has standing. In addition to the

cases cited in Part I of the petition for rehearing, consider Elliot-Park v. Manglona,

592 F.3d 1003 (9th Cir. 2010). There, “the officers argue[d] that individuals don’t

2 It could fall within the dictum “The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” 410 U.S. at 619. But as the Court noted in the very next sentence, those “cases arose in a somewhat different context” and then followed with the reformulated version above. Id. In fact, they arose in a context explicitly distinguished from this one: In Bailey v. Patterson, while “[a]ppellants lack[ed] standing to enjoin criminal prosecutions . . . since they do not allege that they have been prosecuted or threatened with prosecution under them,” they did “have standing to enforce their rights to nonsegregated treatment.” 369 U.S. 31, 32-33 (1962). Bailey is an old case—President Kennedy was still alive in the White House when it was decided—but its teachings endure.


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have a constitutional right to have police arrest others who have victimized them.”

Id. at 1006. But, as the Ninth Circuit noted, the plaintiff’s “equal protection claim

isn’t based on some general constitutional right to have an assailant arrested.” Id.

It was based instead on the claim that the criminal “was given a pass by the police

because of the officers’ alleged racial bias,” id., and the driver “may well have

been emboldened to drive drunk with empty beer cans rolling around in the back of

his truck because he believed that he would suffer no ill consequences should he

cause an accident.” Id. at 1007.

Not only did the court fail to perceive any standing difficulties, it denied

even qualified immunity. Id. at 1008-09. Race versus gender, investigation and

arrest versus investigation and prosecution—these are not meaningful legal

distinctions.3 Government officials may not discriminate on the basis of a

protected classification in any provision of any services. Id. at 1008. Period.

3 Except, of course, that a prosecutor is absolutely immune in a personal capacity.

Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976). Whatever other claims she may have made, Ms. Lefebure has also asserted official-capacity claims against the District Attorney, alleging municipal liability. Absolute immunity is no bar to these claims. Owen v. City of Independence, 445 U.S. 622, 638 (1980). Further, even as to the personal-capacity claims, a prosecutor’s “investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Whether and to what extent the DA’s conduct in this case—such as backroom deals with wardens and cousins—can be fairly attributed to him as an advocate, and whether he played any role during the investigation stage of this case, are issues that can be explored on remand.


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The Ninth Circuit reached that conclusion citing its own version of this

Court’s Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000). Elliot-Park and Shipp

also share a reliance on footnote 3 of DeShaney v. Winnebago County Department

of Social Services: “The State may not, of course, selectively deny its protective

services to certain disfavored minorities without violating the Equal Protection

Clause.” 489 U.S. 189, 197 n.3 (1989). One cannot reconcile this line from

DeShaney, and the many law enforcement liability cases that have cited it in the

decades since, with a view that rape victims lack standing to complain they have

been “selectively den[ied] . . . protective services” because the DA has a policy of

routinely failing to investigate or prosecute rapists. In addition to the cases cited in

the petition from the First, Second, Third, Fifth, Eighth, and Tenth Circuits

adopting the Watson v. City of Kansas City, 857 F.2d 690 (10th Cir. 1988),

standard for these DeShaney claims, a quick look turns up cases from the Sixth,

Seventh, and Ninth Circuits as well. Jones v. Union County, TN, 296 F.3d 417,

426-27 (6th Cir. 2002); Fajardo v. County of L.A., 179 F.3d 698, 700 (9th Cir.

1999); see Schroeder v. Hamilton School Dist., 282 F.3d 946, 957 (7th Cir. 2002)

(Posner, J., concurring); Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir.

2000).

Developments in standing doctrine point to the same result. The Court’s

most comprehensive restatement of the law of standing is generally accepted to be


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Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.

167 (2000). The dissent, by Justices Scalia and Thomas, invoked Linda R.S. and

asserted that the majority’s approach “permit[ed] law enforcement to be placed in

the hands of private individuals.” Id. at 198 (Scalia, J., dissenting). We take no

position whether Laidlaw went so far, which would suggest the availability of

injunctive relief here. It suffices to note that what remained of Linda R.S. after

Duke Power recharacterized its holding and DeShaney changed its substantive

legal backdrop seems unlikely to have survived Laidlaw as well. And now that

Uzuegbunam has put to rest redressability concerns in cases seeking only “to

effectuate a partial remedy,” 2021 WL 850106, at *6, Linda R.S. has lost the last

doctrinal leg on which it stood.

II. The determinative process that led to the panel opinion is definitely wrong.

The local prosecutor whose conduct the panel opinion describes as

“sickening” is the appellant before this Court. His brief makes a colorable

argument against standing but its weaknesses remained unexposed because

Plaintiff-Appellee’s counsel failed to file a brief. As a consequence, the panel

cancelled oral argument. It nevertheless chose this as the vehicle for making major

law that will affect not only Ms. Lefebure but the 36.6 million other souls who

populate the Fifth Circuit. Judicial diffidence would have counseled reticence.


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Despite the lack of adversarial testing and a truncated deliberative process,

the panel published an opinion eliminating an entire class of law enforcement-

related equal protection claims, just as our national dialogue over discriminatory

law enforcement has begun. If this case had been pro se, the Court surely would

have appointed counsel before eliminating these claims in a way that can never be

fixed by a legislature. Yet without the benefit of an advocate on the other side, it

eliminated them forever and all time, or at least so long as Article III stands.

This is a perilous way to make law on any topic, and constitutional law in

particular. But even among constitutional law topics, those touching the federal

courts’ jurisdiction are special and should be modified only after the most careful

consideration. Standing doctrine is strong medicine, the Judicial Branch’s “nuclear

option.” It does not simply circumscribe relief, it boots entire classes of citizens

out of court entirely and forever.

Sometimes there’s no choice: Government could hardly go on if taxpayer

standing were possible. Sometimes it’s a matter of deeply felt judicial policy, as

the environmental standing cases show. What it should be in every case, however,

is a most carefully and deliberatively arrived-at conclusion. There is even an

argument to be made that it is for the Supreme Court alone to permanently ban

entire groups of people from recourse to the federal courts. Whatever the case, an

unopposed brief by a single local DA should be not allowed, via a published


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opinion, to kick classes of citizens out of the Constitution’s protections across an

entire circuit.

The other problem with the panel opinion is that it’s hard to see even a

glimmer of its controversial nature by just reading it. When a panel of a Court of

Appeals makes a mistake as this one has—and as all judges do from time to time,

particularly when the adversary process malfunctions—there are only two ways to

fix the problem: certiorari and en banc review. For its own institutional reasons,

the Supreme Court doesn’t typically grant cert based on implicit conflicts, so one

can almost always forsake hope that the Court will fix this kind of mistake.

Enter en banc review, and our conviction that Courts of Appeals shouldn’t

treat the en banc review as a certiorari-lite process. They are different solutions to

different problems, and the standards governing them should reflect this. While

implicit intercircuit conflicts, and certainly implicit intracircuit conflicts—like that

with Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000), here—are ill suited to

Supreme Court review, they are well suited to the en banc process. En banc

review allows the circuit’s full complement of judges to think deeply about the

issues involved and to write even when rehearing does not result. The audience for

that writing is all at once the Supreme Court, practitioners, legislators, and future

litigants. The result is more judicial participation on issues that have or are in the

process of creating judicial conflict. That can only be a good thing. See Alex


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Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J.

601 (2012), available at https://www.yalelawjournal.org/forum/i-say-dissental-

you-say-concurral.

We therefore urge that in cases such as this, where a constitutional issue is

decided in a way plausibly alleged to create intracircuit or intercircuit conflict, en

banc review is not just appropriate but should follow as a matter of course. The

result is an extra constraint on the power of individual panels to work sweeping

changes to law. As judicial incrementalists, we think this is the proper and orderly

way to proceed.

CONCLUSION

Like the panel judges, we are sickened by the conduct of local law

enforcement in this case. It shocks any semblance of a decent sensibility that there

are places left in America where a sheriff and district attorney routinely fail to

collect and process rape kits, where an assailant’s “we got a little rough” is

accepted at face value by law enforcement, where the victim is the one

investigated, and where the well-connected can avoid spending even a night in jail

after being arrested on suspicion of the most depraved conduct. If the victim and

others like her are not allowed to challenge the policies and practices of such

retrograde jurisdictions, then who is? If the federal courts as the last, best

guardians of the right to equal protection allow these abuses of law to continue


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unchecked, then who are we? If we do not permit demands for justice to be heard

now, then when?

Amici curiae respectfully suggest the Court rehear this case en banc and,

after full briefing and argument, affirm the thoughtful—and adversarially tested—

order of the District Court.

Respectfully submitted,

/s/ Sara A. Johnson

SARA A. JOHNSON Louisiana Bar No. 31207 700 Camp Street New Orleans, LA 70130 (504) 528-9500 [email protected]

Dated: March 12, 2021


CERTIFICATE OF SERVICE

The undersigned certifies that on March 12, 2021, the foregoing BRIEF OF

RETIRED FEDERAL JUDGES AS AMICI CURIAE IN SUPPORT OF

PLAINTIFF-APPELLEE was filed with the Clerk of Court via the electronic filing

system, which will send an electronic Notice of Docket Activity to the following

Filing Users:

Ralph Roger Alexis, III, Esq. ([email protected])

C. Frank Holthaus ([email protected])

Glenn B. Adams ([email protected])

Jack M. Rutherford ([email protected])

“The court’s electronic Notice of Docket Activity constitutes service of the filed

document on all Filing Users.” 5TH CIR. R. 25.2.5.

/s/ Sara A. Johnson SARA A. JOHNSON Louisiana Bar No. 31207 700 Camp Street New Orleans, LA 70130 (504) 528-9500 [email protected]

Dated: March 12, 2021


CERTIFICATE OF COMPLIANCE

The undersigned certifies that:

1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(b)(4) because this brief contains 2,382 words, excluding the Interest of Amici Curiae and parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 5th Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 365 in Times New Roman, 14-point font for text and 12-point font for footnotes.

3. This brief complies with the privacy redaction requirement of Fed. R. App. P. 25(a)(5), 5th Cir. R. 25.2.13, and Fed. R. Crim. P. 49.1, because it has been redacted of personal data identifiers.

4. This electronic submission is an exact copy of any paper document that the Court may order filed, in compliance with 5th Cir. R. 25.2.1.

5. This brief is free of viruses because it has been scanned for viruses with the most recent version of Norton Antivirus, in compliance with 5th Cir. ECF Filing Standard A(6).

/s/ Sara A. Johnson SARA A. JOHNSON Dated: March 12, 2021


Case: 19-30702 Document: 00515779056 Page: 1 Date Filed

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