     Case: 15-50202      Document: 00513335244         Page: 1    Date Filed: 01/08/2016




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

                                    No. 15-50202                                  FILED
                                  Summary Calendar                          January 8, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
JAMAR OSBORNE,

                                                 Plaintiff–Appellant,
v.

TRAVIS COUNTY; JULIA E. VAUGHAN,

                                                 Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CV-528


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In this lawsuit challenging attorney licensure requirements in Texas,
pro se appellant Jamar Osborne appeals the district court’s final order
dismissing with prejudice Osborne’s claims against Defendants-Appellees
Travis County, Julia E. Vaughan, and Buck Files, and denying his motion to
file a second amended complaint. Osborne also challenges an earlier order
denying his motion to disqualify counsel for Vaughan. Because we agree that
Osborne’s pleading, even if amended, fails to state a claim upon which relief


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 15-50202       Document: 00513335244          Page: 2     Date Filed: 01/08/2016


                                       No. 15-50202

may be granted, and because the district court did not abuse its discretion
when it denied Osborne’s motion to disqualify counsel, we AFFIRM.
                                              I.
       Osborne graduated from law school and applied for admission to the
State Bar of Texas (“the Bar”) in 2009 but failed the bar exam. Nevertheless,
Osborne applied for a job as a Travis County attorney in early 2013. Travis
County did not hire him. Later in 2013, Osborne again applied for admission
to the Bar but did not attend the bar exam “due to a personal conflict.” As a
result, Osborne has not obtained a license to practice law in Texas. Osborne
would like to practice law but cannot legally do so in Texas without a license.
As the district court explained, out of this factual scenario “came a whole
assortment of claims, including due process, freedom of association, antitrust,
regulatory taking, professional malpractice, civil rights, equal protection, First
Amendment [freedom of speech], and improper taking of property claims.”
Citizens Against the Bar v. Travis Cty., No. A-13-CV-528-LY, 2014 WL
7338891, at *1 (W.D. Tex. Dec. 22, 2014).
       Osborne initially brought this action against the State of Texas, the
Texas Board of Law Examiners, the Supreme Court of Texas, and the three
remaining defendants, Travis County, Julia E. Vaughan, and Buck Files.
Later, Osborne voluntarily dismissed the State of Texas, the Texas Board of
Law Examiners, and the Supreme Court of Texas. The remaining defendants
each filed a motion to dismiss Osborne’s claims against them, and Osborne
filed a motion for leave to file a second amended complaint. The district court
denied Osborne’s motion, granted the defendants’ motions to dismiss, and
dismissed the action with prejudice. Osborne timely appealed. 1


       1 Because Osborne timely appealed the denial of his Rule 59 motion, we have appellate
jurisdiction to review the district court’s previous orders granting the motions to dismiss and
denying Osborne’s motion to disqualify Vaughan’s counsel. See Armour v. Knowles, 512 F.3d


                                              2
     Case: 15-50202       Document: 00513335244         Page: 3    Date Filed: 01/08/2016


                                      No. 15-50202

                                             II.
                                             A.
       Osborne appeals the district court’s final order granting the defendants’
motions to dismiss and denying Osborne’s motion to file a second amended
complaint. Osborne also appeals the district court’s earlier order denying his
motion to disqualify counsel, in which Osborne argued that the Office of the
Texas Attorney General did not have the authority to represent defendant
Vaughan in this action because she was being sued in her individual capacity.
       We review a district court’s grant of a motion to dismiss de novo. 2 Reece
v. U.S. Bank Nat’l Ass’n, 762 F.3d 422, 424 (5th Cir. 2014). We review a denial
of a motion to file an amended pleading for abuse of discretion, but when, as
here, “the court’s decision is based solely on futility, we review the matter de
novo, using the standard for a motion to dismiss for failure to state a claim.”
McClaine v. Boeing Co., 544 F. App’x 474, 476 (5th Cir. 2013) (citing City of
Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010) and Wilson
v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010)).
       The district court first determined that Osborne’s claims against
defendant Vaughan were barred by the Eleventh Amendment.                           Citizens
Against the Bar, 2014 WL 7338891, at *4. Osborne sued Vaughan for her
actions as “CEO” of the Texas Board of Law Examiners (“TBLE”) for violating
various federal constitutional rights. The district court construed Osborne’s


147, 156 (5th Cir. 2007) (“An appeal from a final judgment sufficiently preserves all prior
orders intertwined with the final judgment.”); Picco v. Global Marine Drilling Co., 900 F.2d
846, 849 n.4 (5th Cir. 1990) (stating that when a party appeals from a final order, the party
may also challenge earlier interlocutory orders).
        2 We have subject matter jurisdiction over Osborne’s claims despite the Rooker-

Feldman doctrine because Osborne’s claims are “general challenges to the constitutionality
of state bar admissions rules” rather than challenges to a “‘state-court judgment[] rendered
before the district court proceedings commenced’” that “‘invit[es] district court review and
rejection of th[at] judgment[].’” Dean v. Miss. Bd. of Bar Admissions, 326 F. App’x 760, 762
(5th Cir. 2009) (citing Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)).


                                             3
     Case: 15-50202        Document: 00513335244           Page: 4     Date Filed: 01/08/2016


                                        No. 15-50202

claims against Vaughan as claims pursuant to 42 U.S.C. § 1983, and reasoned
that because Vaughan was a state official being sued in her official capacity for
damages, Vaughan was entitled to immunity from Osborne’s claims under the
Eleventh Amendment. Id.; see Kentucky v. Graham, 473 U.S. 159, 169 (1985)
(“[A]bsent waiver by the State or valid congressional override, the Eleventh
Amendment bars a damages action against a State in federal court,” and “[t]his
bar remains in effect when State officials are sued for damages in their official
capacity.”).     However, Osborne specifically stated in his complaint 3 that
Vaughan was being sued in her “individual” capacity, and Osborne also alleged
a continuing violation of federal law and requested injunctive relief, which
triggers the Ex Parte Young doctrine. 4 The district court did not address these
allegations. 5 Nevertheless, “we may affirm a district court’s Rule 12(b)(6)
dismissal on any grounds supported by the record.” Rojas v. Wells Fargo Bank,
N.A., 571 F. App’x 274, 279 n.7 (5th Cir. 2014) (citing Hosein v. Gonzales, 452
F.3d 401, 403 (5th Cir. 2006)). As such, we review the complaint to determine
if the dismissal of Osborne’s claims against Vaughan was proper.



       3  The complaint referenced throughout is the first amended complaint.
       4  Specifically, Osborne alleges that he “intends to reapply for a license to practice law
in the near future,” and “[w]ithout the Court’s intervention, Defendants are likely to continue
to violat[e] Plaintiff’s rights.” Osborne also asserts that “Defendant’s violation of Plaintiff’s
rights has caused Plaintiff a continuous and irreparable injury for which there is no adequate
remedy at law,” and, therefore, he is “entitled to declaratory and injunctive relief.”
        5 “Section 1983 does not provide for a remedy against the state,” as “such an action is

barred by the Eleventh Amendment,” Walker, 517 F. App’x at 238 (citing Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 66 (1989)). However, “[a] suit is not ‘against’ a state” when,
as here, “it seeks prospective, injunctive relief from a state actor based on an alleged ongoing
violation of the federal constitution.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 (5th
Cir. 2015) (alterations omitted). However, to benefit from this doctrine, sometimes referred
to as the Ex Parte Young exception, the plaintiff must sue the individual in his or her official
capacity. Id. (stating that the “first requirement of Ex Parte Young” is to sue a state official
in his or her official capacity). Here, Osborne expressly states that he is suing Vaughan only
in her individual capacity (and he sues other defendants in their individual and official
capacities). Id. The district court does not analyze Osborne’s claims against Vaughan in her
individual capacity.


                                                4
     Case: 15-50202        Document: 00513335244          Page: 5     Date Filed: 01/08/2016


                                        No. 15-50202

       Whether or not Osborne alleges an official- or individual-capacity claim
against Vaughan, his claims against her fail because Osborne’s complaint does
not allege a plausible constitutional violation. 6 Osborne first alleged that
Vaughan violated his “right to freedom of thought” under the First and
Fourteenth Amendments “by administering the Texas Bar Exam, compelling .
. . Osborne to give his legal opinions and beliefs as a condition precedent for a
recommendation for a license to practice law and by refusing to recommend
Plaintiff for a license to practice law based on Plaintiff’s opinions and beliefs.”
Osborne’s allegations against Vaughan do not make out a plausible
constitutional violation. First, Osborne is free to think any thought of any kind
regardless of whether he must pass the Texas bar exam to obtain a law license.
Second, both the Supreme Court and this circuit have recognized the
constitutionality of state licensure requirements for the practice of law,
including the requirement that an applicant must show a certain level of
competency in the law by, for example, passing a bar exam. See Sperry v.
Florida ex rel. Fla. Bar, 373 U.S. 379, 383 (1963) (acknowledging that a state
“has a substantial interest in regulating the practice of law within the State”);
Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 238–39 (1957) (“A State
can require high standards of qualification, such as good moral character or
proficiency in its law, before it admits an applicant to the bar, but any
qualification must have a rational connection with the applicant's fitness or



       6  To assert a plausible individual-capacity claim, Osborne must show a violation of his
federal constitutional or statutory rights. Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir.
1999) (“The doctrine of qualified immunity shields a state official from personal liability for
damages under 42 U.S.C. § 1983 when the official’s exercise of discretionary authority results
in a violation of an individual’s federal constitutional or statutory rights, ‘unless at the time
and under the circumstances of the challenged conduct all reasonable officials would have
realized that it was proscribed by the federal law on which the suit is founded.’”). A viable
official-capacity claim, even when the Ex Parte Young exception is implicated, must also
allege a plausible constitutional violation. NioGen Biotech, 804 F.3d at 394.


                                               5
     Case: 15-50202       Document: 00513335244         Page: 6     Date Filed: 01/08/2016


                                       No. 15-50202

capacity to practice law.”); Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir. 1979)
(“It seems clear that there is no constitutional guarantee of the right to practice
law without examination.”). 7            “The Constitution proscribes only those
qualifications or requirements which have no rational connection with an
applicant’s fitness or capacity to practice law.” Attwell, 608 F.2d at 230 (citing
Schware, 353 U.S. at 239). Osborne has not alleged any facts showing how the
Texas bar exam requirement fails to “have a rational connection with the
applicant’s fitness or capacity to practice law.” Schware, 353 U.S. at 239.
       Osborne also alleged that Vaughan deprived Osborne of his procedural
due process rights by refusing to issue him a refund of the fee he paid to apply
to the State Bar of Texas (“application fee”).              To state such a claim for
deprivation of due process, Osborne must allege a constitutionally protected
property interest, among other elements.                  Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538–39 (1985) (stating that the plaintiffs’ due
process claim “depends on their having had a property right” in the thing of
which they were deprived by the state). Here, Osborne’s complaint fails to
show how he retained a constitutionally protected property interest in his
money after paying the nonrefundable application fee.                    Because both of
Osborne’s claims against defendant Vaughan fail, we AFFIRM the district
court’s dismissal of these claims.
       With regard to defendant Buck, Osborne alleged that Buck, as
“President of the Texas Bar,” “deliberately placed an undue burden” on the


       7 See also Konigsberg v. State Bar of Cal., 366 U.S. 36, 50–52 & n.11 (1961) (stating,
in the context of a challenge to state law licensure requirements, that when a requirement to
answer certain questions “is outweighed by the State’s interest in ascertaining the fitness of
the employee for the post he holds,” “such questioning does not infringe constitutional
protections”; and also noting that “the First Amendment immunity for speech, press and
assembly has to be reconciled with valid but conflicting governmental interests”); Nat’l Ass’n
for the Advanc. of Multijur. Practice v. Berch, 773 F.3d 1037 (9th Cir. 2014) (rejecting First
and Fourteenth Amendment challenges to Arizona’s bar exam requirement).


                                              6
    Case: 15-50202    Document: 00513335244    Page: 7   Date Filed: 01/08/2016


                                No. 15-50202

right of Osborne’s brother, Mikal Osborne, to petition the courts by
inadequately regulating attorney’s fees.    The district court reasoned that
Osborne failed to allege facts showing that Mikal Osborne had any trouble
petitioning the courts, as Mikal Osborne did in fact litigate his dispute that
related to the high attorney’s fees and was one of the plaintiffs who brought
this action. Citizens Against the Bar, 2014 WL 7338891, at *5. We agree that
no facts show any burden on Mikal Osborne’s ability to petition the courts and
AFFIRM the district court’s dismissal of Osborne’s claims against Buck.
      Finally, Osborne alleged that defendant Travis County violated Title VII
of the Civil Rights Act of 1964 by only hiring applicants with law licenses for
its attorney positions. Osborne alleges that this practice has a disparate
impact on African-Americans because a lower percentage of African-American
bar applicants passed the Texas bar exam in 2004, as compared to Caucasian
bar applicants. “To establish a prima facie case of discrimination under a
disparate-impact theory, a plaintiff must show: (1) an identifiable, facially
neutral personnel policy or practice; (2) a disparate effect on members of a
protected class; and (3) a causal connection between the two.” McClain v.
Lufkin Indus., Inc., 519 F.3d 264, 275 (5th Cir. 2008). As the district court
explained, Osborne failed to make such a showing because the only statistical
evidence supplied by Osborne relates to the bar exam, which “itself is not an
‘employment practice’ of Travis County” and, moreover, provides no
information on the effect on African-Americans of Travis County’s practice of
only hiring licensed attorneys when compared to overall “pool of applicants.”
See Crawford v. U.S. Dep’t of Homeland Sec., 245 F. App’x 369, 379–80 (5th
Cir. 2007) (holding that appellant failed to allege a prima facie case of
disparate impact discrimination when her statistics were “not properly
tailored” to the alleged discrimination); Citizens Against the Bar, 2014 WL



                                      7
    Case: 15-50202     Document: 00513335244      Page: 8   Date Filed: 01/08/2016


                                  No. 15-50202

7338891, at *5–*6. We agree with the district court and AFFIRM the dismissal
of Osborne’s claims against Travis County.
      Upon review of the relevant filings, we also AFFIRM the denial of
Osborne’s motion to file a second amended complaint for essentially the
reasons set forth in the district court’s December 22, 2014, order. See Citizens
Against the Bar, 2014 WL 7338891, at *2–*4.
                                        B.
      We review a district court’s denial of a motion to disqualify counsel for
abuse of discretion. In re ProEducation Int’l, Inc., 587 F.3d 296, 299 (5th Cir.
2009). Defendant Vaughan, who was sued for her actions as the Executive
Director of the TBLE, is represented by the Office of the Attorney General of
Texas (“AG’s Office”). Osborne asserted that the AG’s Office did not have legal
authority to represent Vaughan because Osborne was suing her in her
individual capacity. The district court denied the motion because the TBLE is
a state governmental entity formed under Texas law, and the AG’s Office “has
constitutional and statutory authority” to represent state officials and
employees “in all actions in which the State has an interest,” regardless of
whether the state employee or official is sued in his or her official or individual
capacity. Because the district court’s order did not make clearly erroneous
factual findings or errors of law, we AFFIRM. See In re ProEducation Int’l,
587 F.3d at 299.
      AFFIRMED.




                                        8
