Case: 17-20519   Document: 00514940593    Page: 1   Date Filed: 05/02/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                No. 17-20519                       May 2, 2019
                                                                 Lyle W. Cayce
JERRY REED,                                                           Clerk


             Plaintiff–Appellant,

v.

ALLISON TAYLOR, in her Individual Capacity; BARBARA MACNAIR, in
her Official and Individual Capacity; PROGRAM SPECIALIST HOLLY
WHITE, in her Official and Individual Capacity; KRISTY ALFORD, in her
Official and Individual Capacity; MARSHA MCLANE, in her Official
Capacity,

             Defendants–Appellees.


                Appeal from the United States District Court
                     for the Southern District of Texas


Before ELROD, WILLETT, and DUNCAN, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      Jerry Reed is a civilly committed sexually violent predator. Under now-
repealed Texas law, he had to pay for GPS monitoring or else face criminal
prosecution. Reed’s sole income, though, was Social Security. He contends that
the pay-or-be-prosecuted penalty violated the Social Security Act’s anti-
attachment provision, 42 U.S.C. § 407(a), which protects benefits from
“execution, levy, attachment, garnishment, or other legal process.”
      Reed is mistaken. His Social Security benefits were not executed on,
levied, attached, or garnished. And “other legal process” is not a limitless
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                                      No. 17-20519
catchall. The time-honored ejusdem generis canon confines the phrase to
processes like those specifically enumerated. Section 407(a) has a familiar
specific-then-general syntactic construction where the upfront enumeration
limits the tagalong residual phrase. In other words, “other legal process”
doesn’t mean any process; it means other similar process. And because the
threat of criminal prosecution differs materially from the specific processes
listed, we AFFIRM the district court’s judgment.

                                             I
      The Texas Office of Violent Sex Offender Management was responsible
for Reed’s treatment and supervision. 1 Texas Health and Safety Code Chapter
841 and Reed’s Order of Commitment require him to wear a GPS tracking
device. 2 Chapter 841 also requires him to pay for the tracking service. 3 During
the applicable period, failure to pay was punishable as a third-degree felony. 4
(The criminal penalty was repealed in 2015. 5) The defendant officials each
implemented or enforced that statutory requirement. 6 Put differently, each
official told Reed he had to pay for GPS tracking or be liable for a felony.




      1 This entity has since been renamed the Texas Civil Commitment Office.
      2 TEX. HEALTH & SAFETY CODE § 841.082(a)(4).
      3 

The district court helpfully summarized how the various

Chapter 841 provisions operated:
      While the penal statue § 841.085 never referenced a violation of § 841.084,
      which is the statute imposing on the SVP [sexually violent predator] an
      obligation to pay for the tracking service, it did . . . criminalize a failure to
      participate in and comply with the sex offender program provided by OVSOM
      [Office of Violent Sex Offender Management] and to comply with all written
      requirements imposed by OVSOM.
      4 Act of June 18, 1999, 76th Leg., R.S., § 4.01 (codified as amended at TEX. HEALTH &
SAFETY CODE § 841.085).
      5 See Act of June 17, 2015, 84th Leg., R.S., § 19 (codified at TEX. HEALTH & SAFETY

CODE § 841.085) (repealing criminal penalty for noncompliance with § 841.082(a)(3)).
      6 For purposes of this appeal the defendant officials are Allison Taylor, Barbara

MacNair, Holly White, and Kristy Alford.
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                                   No. 17-20519
      Reed is “totally blind” and receives Social Security disability benefits.
For at least part of the applicable time, Social Security was his only source of
income. Reed asserts that requiring him to pay for GPS monitoring under
threat of criminal prosecution subjected his Social Security money to “other
legal process” in violation of § 407(a). He sued the officials for damages under
42 U.S.C. § 1983.
      The district court granted summary judgment to the officials based on
qualified immunity, holding that the threat of criminal prosecution wasn’t
“other legal process” under clearly established law. Reed appealed. We
appointed counsel to assist Reed under the circuit’s pro bono program and
deeply appreciate counsel’s able representation.

                                          II
      The rules governing our consideration are familiar.
      First, the standard of review. We review immunity-based grants of
summary judgment de novo. 7
      Second, the summary-judgment standard. Under Rule 56, summary
judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 8
      Third, the qualified-immunity standard. “The doctrine of qualified
immunity shields officials from civil liability so long as their conduct ‘does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’ ” 9 “Once invoked, a plaintiff bears the
burden of rebutting qualified immunity by showing two things: (1) that the


      7 Stidham v. Tex. Comm’n on Private Sec., 

, 490 (5th Cir. 2005) (“We
review de novo the district court’s grant of summary judgment based on qualified
immunity.”).
      8 FED. R. CIV. P. 56(a).
      9 Mullenix v. Luna, 

, 308 (2015) (per curiam) (quoting Pearson v.

Callahan, 

, 231 (2009)).
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                                       No. 17-20519
officials violated a statutory or constitutional right and (2) that the right was
‘clearly established at the time of the challenged conduct.’” 10 Clearly
established means that “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that
right.” 11 “The central concern is whether the official has fair warning . . . .” 12
“To answer that question in the affirmative, we must be able to point to
controlling authority—or a ‘robust consensus of persuasive authority’—that
defines the contours of the right in question with a high degree of
particularity.” 13
                                             III
       The question is straightforward: Did the GPS payment policy subject
Reed’s Social Security benefits to “execution, levy, attachment, garnishment,
or other legal process” in violation of § 407(a)? The answer, equally
straightforward, is no.
                                              A
       Our Constitution’s ingenious architecture demands that judges be
sticklers when decoding legislative text. The law begins with language, and the
foremost task of legal interpretation is divining what the law is, not what the
judge-interpreter wishes it to be.
       On that score, our precedent favors bright lines and sharp corners,
including unswerving fidelity to statutory language: “Text is the alpha and the
omega of the interpretive process.” 14 Judges are minders, not makers or



       10 Perniciaro v. Lea, 

, 255 (5th Cir. 2018) (quoting Ashcroft v. al-Kidd,

, 735 (2011)).
       11 Anderson v. Creighton, 

, 640 (1987).
       12 Delaughter v. Woodall, 

, 140 (5th Cir. 2018).
       13 Morgan v. Swanson, 

, 371–72 (5th Cir. 2011) (en banc) (quoting al-

).
       14 United States v. Maturino, 

, 723 (5th Cir. 2018); see also, e.g., United

States v. Lauderdale County, 

, 964 (5th Cir. 2019) (“The task of statutory
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                                         No. 17-20519
menders. All to say, we must take Congress at its word, presume it meant what
it said, and refuse to revise statutes under the guise of interpreting them. 15
       True, congressional handiwork is now and again imprecise—sometimes
inadvertently, sometimes intentionally. But judges rarely need secret decoder
rings to decrypt legislative language. Statutory language, like all language, is
suffused with age-old interpretive conventions. And judges, like all readers,
must be attentive not to words standing alone but to surrounding structure
and other contextual cues that illuminate meaning. 16
       This case is about the legal interpretation of three words—“other legal
process”—but that task requires us to discern the meaning of accompanying
words and how they are knit together. 17 Robotic literal parsing can sometimes
cloak rather than clarify. 18 In this case, familiar linguistic clues—not to
mention on-point Supreme Court precedent—reveal § 407(a)’s semantic import
as a harmonious whole.
                                                B
       Our inquiry begins and ends with the text of § 407(a), which limits the
taking of Social Security benefits:




interpretation begins and, if possible, ends with the language of the statute.” (quoting Trout
Point Lodge, Ltd. v. Handshoe, 

, 486 (5th Cir. 2013))).
         15 Conn. Nat’l Bank v. Germain, 

, 253–54 (1992) (“[I]n interpreting a

statute a court should always turn to one, cardinal canon before all others. We have stated
time and again that courts must presume that a legislature says in a statute what it means
and means in a statute what it says there.” (citations omitted)).
         16 See United States v. Graves, 

, 141 (5th Cir. 2018) (“[T]ext may not be

divorced from context.” (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

, 356
(2013))).
         17 See Doe v. KPMG, LLP, 

, 688 (5th Cir. 2005) (“When interpreting a

statute, we start with the plain text, and read all parts of the statute together to produce a
harmonious whole.”).
         18 See Ramos-Portillo v. Barr, 

, 960 (5th Cir. 2019) (“In interpreting a

statute, we do not look at a word or a phrase in isolation. The meaning of a statutory provision
‘is often clarified by the remainder of the statutory scheme . . . .’” (quoting Util. Air Regulatory
Grp. v. EPA, 

, 321 (2014))).
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                                       No. 17-20519
       The right of any person to any future payment under this
       subchapter shall not be transferable or assignable, at law or in
       equity, and none of the moneys paid or payable or rights existing
       under this subchapter shall be subject to execution, levy,
       attachment, garnishment, or other legal process, or to the
       operation of any bankruptcy or insolvency law.
       The phrasing of the bolded language requires application of the ejusdem
generis canon: “[w]here general words follow specific words in a statutory
enumeration, the general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding specific words.” 19
Section 407(a) follows this familiar semantic structure, meaning the follow-on
phrase “other legal process” is limited to processes like “execution, levy,
attachment, [or] garnishment.” Common phrasing; common-sense meaning. A
broader reading would “fail[] to give independent effect to the statute’s
enumeration of the specific categories” earlier in the sentence. 20
       The Supreme Court agrees. In Keffeler, the Court held that the “usual
rules of statutory construction” require a “restrictive understanding of ‘other
legal process.’” 21 The issue was whether the state of Washington could use
children’s Social Security benefits to reimburse itself for their foster care. 22 The
plaintiffs contended that this unlawfully subjected the children’s benefits to
“other legal process.” 23 The Court invoked both ejusdem generis and noscitur a




       19  Circuit City Stores, Inc. v. Adams, 

, 114–15 (2001) (alteration in
original) (quoting 2A N. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION
§ 47.17 (1991)).
       20 

see CSX Transp., Inc. v. Ala. Dep’t of Revenue, 

, 295 (2011)

(“We typically use ejusdem generis to ensure that a general word will not render specific
words meaningless.”); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 199–200 (2012).
       21 Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 

, 385–86 (2003).
       22 

       23 

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                                      No. 17-20519
sociis. 24 It held that “other legal process” in context means “process much like
the processes of execution, levy, attachment, and garnishment” and so requires
(1) “utilization of some judicial or quasi-judicial mechanism,” (2) “by which
control over property passes from one person to another,” (3) “to discharge or
secure discharge of an allegedly existing or anticipated liability.” 25 So
Washington’s use of Social Security money to offset foster care expenses was
not “other legal process.” It did not use judicial or quasi-judicial means; did not
pass control of any funds (which were already in the state’s possession because
it had “representative payee” status under the Act); and did not discharge an
enforceable obligation. 26
       Applying Keffeler to this case, the specter of prosecution is not “other
legal process.” Although the threat led to a transfer of property, and arguably
discharged a Chapter 841 liability, it did not use a judicial or quasi-judicial
mechanism. A threat of future action is not an “exercise of some sort of judicial
or quasi-judicial authority to gain control over another’s property” as Keffeler
puts it. 27 Congress protected Social Security beneficiaries from judicially
enforced transfers, not threats of liability. 28
       Reed’s contrary cases are distinguishable or otherwise unpersuasive in
light of Keffeler. First are two other Supreme Court cases interpreting § 407(a).
In Philpott v. Essex County Welfare Board, the Court prohibited New Jersey
from attaching a man’s Social Security money to secure his repayment of state
welfare benefits. 29 The Court held that this action “was an attempt to subject




       24 

       25 

       26 

       27 

Wojchowski v. Daines, 

, 106–10 (2d Cir. 2007) (overruling, based on

Keffeler, Second Circuit precedent that threats are “other legal process”).
       29 

, 415 (1973).

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                                     No. 17-20519
the money to ‘levy, attachment . . . or other legal process’” and thus violated
§ 407(a). 30 Similarly, in Bennett v. Arkansas the Court held that Arkansas
could not “attach certain federal [Social Security] benefits paid to individuals
who are incarcerated in Arkansas prisons.” 31
       Both Philpott and Bennett are distinguishable. They do not interpret
“other legal process.” Rather, as the Court explained in Keffeler, “both Philpott
and Bennett involved judicial actions in which a State sought to attach a
beneficiary’s Social Security benefits . . . . Unlike the present case, then, both
Philpott and Bennett involved forms of legal process expressly prohibited by
§ 407(a).” 32
       Reed also cites dicta from our unpublished decision In re Mayer. 33 Mayer
held that a court’s sanction, payable by necessity from the party’s Social
Security benefits, was not “other legal process” under § 407(a). 34 It
distinguished the sanction from the “threat of a lawsuit,” suggesting that
§ 407(a) might forbid such a thing. 35 But the Supreme Court’s later decision in
Keffeler undermined this dictum when it held that “other legal process” must
be similar to the enumerated judicial actions. 36
       Reed next cites the Eight Circuit’s pre-Keffeler decision King v. Schafer. 37
The issue was whether Missouri could access committed mental-health
patients’ Social Security benefits to pay for their care. 38 The court faced two
types of alleged “other legal process.” First, where the patients’ family



       30 

(ellipsis in original) (quoting 42 U.S.C. § 407(a)).
       31 

, 396 (1988) (per curiam).
       

.
       33 

, 

, at *4 (5th Cir. 1999) (unpublished).
       34 

       36 

.
       37 

(8th Cir. 1991).
       38 

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                                      No. 17-20519
members were receiving the benefits as representative payees, the court held
that § 407(a) prohibited the state from threatening to sue them or seize their
state income tax refunds unless they remitted the money for their relatives’
care. 39 Such a threat was prohibited “other legal process.” 40 This holding
supports Reed’s theory that a threat of legal action can violate § 407(a). Second,
where the state was receiving the benefits as representative payee, its use of
the money to offset costs of the beneficiaries’ care was not “other legal
process.” 41 The state’s representative-payee status was material because a
procedure explicitly endorsed in one part of the Act could not be prohibited
under a different part. 42
       King is persuasive only to the extent it doesn’t conflict with Keffeler.
Promisingly for Reed, the Supreme Court in Keffeler cited King favorably. 43
But the Court cited only the holding that the state could use the funds when it
was a representative payee; it did not address the portion of King that’s
relevant here—the state’s ability to threaten judicial action when it is not a
representative payee. 44 That holding had no application in Keffeler, because
Keffeler was not about threats and was limited to the state-as-representative-
payee context. 45 Despite following King’s representative-payee holding, Keffler
implicitly disapproved King’s threats holding. The Court’s textual analysis of




       39  

       40  

state cannot do, it cannot threaten to do.”).
        41 

n.7.
        44 See 

(“The questions to be answered in resolving this case . . . are

whether the department’s effort to become a representative payee, or its use of respondents’
Social Security benefits when it acts in that capacity, amounts to employing an ‘execution,
levy, attachment, garnishment, or other legal process’ within the meaning of § 407(a).”).
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                                       No. 17-20519
§ 407(a) is inconsistent with King’s holding that threats are other legal
process. 46 King cannot save Reed’s argument in this case. 47
       Finally, Reed argues that criminal prosecution of debtors has historically
been used as legal process to collect obligations and secure the transfer of
property, so it is similar to execution, levy, attachment, or garnishment. But
Reed supports this proposition only by citation to a journal article, not
controlling or persuasive law, and he acknowledges that criminal prosecution
of debtors is “archaic.” The officials in this case did not violate § 407(a) by
threatening to enforce Chapter 841’s criminal penalties. 48



       46  See 

; 

–10 (overruling, based on
Keffeler, Second Circuit precedent that threats are “other legal process”).
        47 Reed cites one post-Keffeler case holding that a threat is “other legal process.”

Albright v. Allied Int’l Credit Corp., No. CV034828CAS(RZX), 

, at *3 (C.D.
Cal. Aug. 25, 2003). Albright attempts to distinguish Keffeler because it did not expressly
address threats of future action. 

unconvincing. An executive (or private) threat of
future action is not the same as the concrete “writ[s],” “order[s],” or “summons” analogized in
Keffeler, which generally would have been approved by a 

(quoting
Social Security Administration Program Operations Manual System).
        48 A decade ago in Pearson v. Callahan, the Supreme Court altered the mechanics of

qualified-immunity analysis. 

, 231 (2009). In short, Pearson relaxed the
categorical Saucier two-step inquiry that had required courts to first decide whether the law
was violated before turning to whether the law was clearly established. See Saucier v. Katz,

(2001). Post-Pearson, courts have case-by-case discretion to leapfrog Prong One
if Prong Two is 

. In this case, as in most, we believe
it is worthwhile to follow the Saucier sequence and not bypass the first inquiry. First, ejusdem
generis renders the textual analysis easy. In many cases the Prong One issue is doubly
challenging: legally difficult and inadequately briefed. Neither is true here. Second, as a
practical matter, identifying whether this law was clearly established requires almost all the
work of deciding whether a violation occurred. Examining one necessarily overlaps with the
other. It is “difficult to decide whether [the] right is clearly established without deciding
precisely what the existing . . . right happens to be.” 

v. Xenia, 

, 581 (6th Cir. 2005) (Sutton, J., concurring)). Third, confronting Prong One enables us to
reinforce bedrock principles of statutory interpretation that have application beyond this
case. See Zadeh v. Robinson, 

, 493 (5th Cir. 2018). Fourth, as the Supreme Court
has itself modeled, it advances the development of the law to clarify for future cases what
conduct is prescribed and proscribed. See Plumhoff v. Rickard, 

, 774 (2014)
(noting that the Saucier procedure remains “worthwhile,” and even if Prong Two is itself
determinative, addressing Prong One “is often beneficial” because it “promotes the
development of constitutional precedent” (quoting 

)); see also, e.g.,

–99 (Willett, J., concurring dubitante) (flagging the concern of
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                                       No. 17-20519
                                              C
       Alternatively, the officials’ challenged conduct did not violate a clearly
established right. 49 Even if Keffeler’s interpretation of “other legal process”
could encompass the threat of criminal prosecution, Reed has not identified
“controlling authority” or a “robust consensus of persuasive authority” that
defined the right favorably to him “with a high degree of particularity.” 50 The
officials are thus entitled to qualified immunity under either prong. 51

                                             IV
       Criminalizing a sexually violent predator’s failure to pay for GPS
monitoring is not “other legal process” under § 407(a). The district court
correctly interpreted the anti-attachment provision; the Texas officials are
entitled to qualified immunity; and we AFFIRM.




“constitutional stagnation”—“fewer courts establishing law at all, much less clearly doing
so”). Section 407(a) remains on the books, even if Texas’s noncompliance penalty does not.
        49 See 

(holding that defendants did not violate the asserted

right and, in the alternative, did not violate clearly established law).
        50 

–72 (quoting al-

).
        51 Today’s decision only reaches whether the officials’ actions violated § 407(a) and

whether this was clearly established. We otherwise express no opinion about Texas’s now-
repealed policy.
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                                      No. 17-20519


JENNIFER WALKER ELROD, Circuit Judge, concurring in the judgment:

         I agree with the panel majority’s ultimate conclusion. We should affirm
the district court’s grant of summary judgment. But we should reach that
conclusion by addressing only the second prong of qualified immunity—not the
first.
         In 2015, as the panel majority observes, Texas repealed the criminal
penalty for failure to pay for GPS monitoring. Resolving whether that state
law violates the Social Security Act is therefore unnecessary because the law
no longer exists. The main justifications for addressing the first prong of
qualified immunity are to prevent stagnation in the law’s development and to
keep “government officials [from] violat[ing] . . . rights with impunity.” Aaron
Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L.
Rev. 1, 12 (2015) (quoting Jack M. Beermann, Qualified Immunity and
Constitutional Avoidance, 2009 Sup. Ct. Rev. 139, 149). Neither concern is
implicated here. We need not illuminate whether threatening a social security
beneficiary with prosecution is legal under federal law; it is not even legal
under state law anymore. And we need not prevent officials from potentially
violating the rights of social security beneficiaries in this way because state
law no longer allows those officials to do so. 1 All that remains is whether Reed
is entitled to damages.        It is enough to answer that question by looking



         The State of Texas—knowing that Congress had protected social security benefits
         1

from “execution, levy, attachment, garnishment, or other legal process,” 42 U.S.C. § 407(a)—
sought out other avenues to procure payment for GPS monitoring from a blind person whose
sole income was social security benefits. The State threatened Reed with criminal
prosecution—for a third-degree felony—if he failed to fork over some of his social security
benefits. Succumbing to this threat, Reed called a cab each month to travel to his local
grocery store and purchase a money order. Every month, he received somewhere between
$628 and $731 in social security benefits and mailed a money order between $95 and $167 to
keep the would-be felony prosecutors at bay.
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                                No. 17-20519
exclusively to whether the law in this area was clearly established at the time
that Reed made his coerced payments. I agree with the panel majority that it
was not. For that reason, I concur in the judgment.




                                      13