United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON GOVERNMENT'S MOTION FOR VOLUNTARY
DISMISSAL OF DISCRIMINATORY PURPOSE CLAIM AND ASSERTION OF
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
the Court is “United States's Motion for Voluntary
Dismissal of Discriminatory Purpose Claim Without
Prejudice” (D.E. 1001). Defendants have not asserted
any objection to the relief sought in the motion and the
“Private Plaintiffs take no position” on it. D.E.
1010, p. 5. However, the Government's stated reasoning
for its dismissal, at least in part, is that (1) the
discriminatory purpose claim is moot due to pending Texas
legislation and (2) the Fifth Circuit directed this Court to
forbear a decision on discriminatory purpose until after the
end of the current Texas legislative session.
February 28, 2017, the Court ordered briefing on the issues
of mootness and forbearance, and the briefs have been filed.
D.E. 1010, 1012, 1015, 1018, 1019. For the reasons set out
below, the Court HOLDS that the Fifth Circuit did not direct
this Court to withhold a decision on the discriminatory
purpose claim and that the claim is not, and will not be,
moot as a result of pending or future legislation.
Nonetheless, the Court GRANTS the motion to dismiss the
Government's claim as unopposed.
The Fifth Circuit's Directive Did Not Require
Fifth Circuit majority's remand of the discriminatory
intent finding came with clear instructions issued in the
conclusion of its initial analysis: (1) this Court was to
receive no new evidence; (2) this Court could, but was not
required to, entertain additional oral arguments; (3) this
Court's first priority was to fashion interim relief for
the discriminatory effects claim, to be imposed prior to the
November 2016 election; (4) it was unnecessary for this Court
to make its new finding on discriminatory intent prior to the
November 2016 election; and (5) this Court was not to impose
any relief based on any decision regarding discriminatory
intent until after the November 2016 election. Veasey v.
Abbott, 830 F.3d 216, 242-43 (5th Cir. 2016). These
instructions were repeated at the conclusion of the majority
opinion. Id. at 272.
wrap-up discussion of the discriminatory intent claim, the
majority opinion expressly acknowledged that this Court was
permitted to make its new finding prior to the November 2016
election so long as no remedy on that basis would be imposed
until after the election. Id. While the opinion also
states that this Court's reexamination of the
discriminatory purpose claim should be done, “bearing
in mind the effect any interim legislative action taken with
respect to SB 14 may have, ” that statement was made in
connection with interim relief and should not be read out of
context. Additional legislative action will certainly inform
the type of relief warranted with respect to any violation
The Question of Discriminatory Intent Will Not Be Mooted by
Supreme Court has placed the difficult burden of
demonstrating mootness squarely upon the party who asserts
[T]he standard we have announced for determining whether a
case has been mooted by the defendant's voluntary conduct
is stringent: “A case might become moot if subsequent
events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.”
The “heavy burden of persua[ding]” the court that
the challenged conduct cannot reasonably be expected to start
up again lies with the party asserting mootness.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (quoting
United States v. Concentrated Phosphate Export
Assn., 393 U.S. 199, 203 (1968)).
well-settled that new legislation does not ipso facto
eliminate the discriminatory intent behind older legislation
and moot a dispute regarding the violation of law. Hunter
v. Underwood, 471 U.S. 222, 232-33 (1985) (events over
80 years to change the terms of the law do not eliminate its
original discriminatory intent); Miss. State Chapter,
Operation Push, Inc. v. Mabus, 932 F.2d 400, 408-09 (5th
Cir. 1991) (each bill must be evaluated on its own terms for
discriminatory purpose); N. C. State Conference of NAACP
v. McCrory, 831 F.3d 204, 240 (4th Cir. 2016)
(reasonable impediment amendment does not eliminate all
lingering effects of law that was discriminatory when
passed); Perez v. Texas, 970 F.Supp.2d 593, 603
(W.D. Tex. 2013) (claims of intentional discrimination in
connection with legislation are not mooted by subsequent
legislation so long as requested relief is available for
purposeful discrimination); Perez v. Abbott, No.
SA-11-CV-360, 2017 WL 962947, at *3 (W.D. Tex. Mar. 10, 2017)
(finding intentional discrimination claims not moot so long
as relief was available to remedy the associated harm, even
if remedy for discriminatory effects claim was mooted by
State's authorities, cited for the opposite conclusion
are distinguishable. In Diffenderfer v. Central Baptist
Church of Miami, Florida, Inc., 404 U.S. 412, 413-14
(1972), citizens and taxpayers sued to challenge the
constitutionality of a statute that allowed a church parking
lot to be exempt from taxation even when it was used for
commercial purposes. They sought a declaratory judgment that
the statute was unconstitutional and also sought future
taxation of the commercial use of the property. The action
was mooted on appeal because the statute that fully exempted
the property was repealed and the parking lot was being taxed
for its commercial use. All relief requested had been
achieved. Here, the remedies proposed by pending legislation
are neither final nor complete and nothing has been done to
grant Plaintiffs the entirety of the remedies they seek.
substitution of an arguably less discriminatory ordinance was
accomplished during the pendency of Northeastern Florida
Chapter of the Associated General Contractors of America v.
City of Jacksonville, Florida, 508 U.S. 656, 662 (1993),
a case upon which Defendants rely. The Supreme Court ...