     Case: 17-50913   Document: 00514995485     Page: 1   Date Filed: 06/13/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                           United States Court of Appeals

                                 No. 17-50913
                                                                    Fifth Circuit

                                                                  FILED
                                                              June 13, 2019

RYAN SISSOM,                                                 Lyle W. Cayce
                                                                  Clerk
             Plaintiff – Appellant,

v.

UNIVERSITY OF TEXAS HIGH SCHOOL; UNIVERSITY OF TEXAS; BETH
COOPER, Principal/Director III of University of Texas High School; STEVE
ROSEN, Legal advisor for University of Texas regents; STEVE WALLS,
Superintendent of University of Texas High School,

             Defendants – Appellees.




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


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:
      Ryan Sissom sued the University of Texas at Austin, University of Texas
High School (UT High School), and various school officials, for racketeering
and “gaslighting”—a term used by some to describe causing psychological
harm. The district court dismissed Sissom’s complaint for lack of jurisdiction
as to all defendants, holding that they are entitled to sovereign immunity.
We AFFIRM.
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                                 No. 17-50913
                                       I.
      In 1998, the Texas State Board of Education approved the University of
Texas at Austin to establish UT High School, an online high school program
authorized to award high school credits and diplomas. UT High School is
governed by the University of Texas.
      Sissom enrolled in UT High School in 2014 and attended for the next two
and a half years until he seemingly graduated from the school.           Sissom,
proceeding pro se, filed suit against the University of Texas at Austin, UT High
School, Beth Cooper (UT High School’s principal), Steve Rosen (Associate Vice
President for Legal Affairs for the University of Texas), and Steve Walls (UT
High School’s superintendent) in their official capacities, alleging claims of
“gaslighting” as well as violations of the Racketeer Influenced and Corrupt
Organization Act (RICO).
      Sissom bases his claims on the events that allegedly occurred while he
was a student at UT High School. At bottom, Sissom alleges that UT High
School’s various policies and practices regarding grading and ranking “knocked
[him] out of the running” for various scholarships and admissions into
prestigious colleges.    Sissom also alleges that UT High School’s officials
conspired to do so in order to gaslight—or cause psychological harm to—him.
The district court dismissed Sissom’s complaint for lack of jurisdiction, holding
that all of the defendants enjoy sovereign immunity under the Eleventh
Amendment. Sissom appealed.
                                       II.
      We review a district court’s dismissal under Rule 12(b)(1) for lack of
subject matter jurisdiction de novo. Meyers ex rel. Benzing v. Texas, 410 F.3d
236, 240 (5th Cir. 2005).




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                                   No. 17-50913
                                        III.
      States are immune from suit except by their consent or by express
abrogation of their immunity by Congress pursuant to an appropriate
constitutional provision. Alden v. Maine, 527 U.S. 706, 733 (1999); see also
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996). The states’ immunity
“is a fundamental aspect of the sovereignty which the [s]tates enjoyed before
the ratification of the Constitution, and which they retain today . . . except as
altered by the plan of the Convention or certain constitutional Amendments.”
Alden, 527 U.S. at 713. The Supreme Court has made it clear that, although
the states’ immunity from suit has been referred to as “Eleventh Amendment
immunity,” this phrase is “something of a misnomer, for the sovereign
immunity of the States neither derives from, nor is limited by, the terms of the
Eleventh Amendment.” Id.; accord Franchise Tax Bd. of Cal. v. Hyatt, 139 S.
Ct. 1485, 1496 (2019).
      The Eleventh Amendment confirmed the deeply rooted “recognition that
the [s]tates, although a union, maintain certain attributes of sovereignty,
including sovereign immunity.”        Hyatt, 139 S. Ct. at 1496 (quoting P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)).
However, because the Eleventh Amendment textually divests federal courts of
jurisdiction over states, it is indispensable to assessing this court’s jurisdiction.
Under the Eleventh Amendment, “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States . . . .” U.S. Const. amend. XI.
“When a state agency is the named defendant, the Eleventh Amendment bars
suits for both money damages and injunctive relief unless the state has waived
its immunity.” Cozzo v. Tangipahoa Par. Council–President Gov’t, 279 F.3d
273, 280–81 (5th Cir. 2002). However, “the Eleventh Amendment does not


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                                  No. 17-50913
extend its immunity to units of local government.” Bd. of Trs. of the Univ. of
Ala. v. Garrett, 531 U.S. 356, 369 (2001).
      Here, we must determine whether UT High School is an arm of the state
entitled to sovereign immunity or a local government body not entitled to
sovereign immunity. “To determine whether a unit of government belongs to
state or local government, we employ the six-factor test developed in Clark v.
Tarrant Cty., Tex., 798 F.2d 736 (5th Cir. 1986).”          Providence Behavioral
Health v. Grant Rd. Pub. Util. Dist., 902 F.3d 448, 456 (5th Cir. 2018). The six
factors are:
      1. Whether the state statutes and case law view the agency as an
      arm of the state;

      2. The source of the entity’s funding;
      3. The entity’s degree of local autonomy;
      4. Whether the entity is concerned primarily with local as opposed
      to statewide problems;

      5. Whether the entity has the authority to sue and be sued in its
      own name; and

      6. Whether the entity has the right to hold and use property.
Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999). “The goal of
this test is to determine ‘whether the suit is in reality a suit against the state
itself.’ ” Providence Behavioral Health, 902 F.3d at 456 (quoting Hudson, 174
F.3d at 682). Applying the six-factor test, we hold that UT High School is an
instrumentality of the State of Texas and entitled to sovereign immunity.
      The first Clark factor—whether state law views the agency as an arm of
the state—favors treating UT High School as an arm of the state. Although
neither party points us to a Texas statute or court case directly relevant to UT
High School, Sissom’s complaint and documents appended thereto show that
UT High School is considered a department within, and governed by, the

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                                       No. 17-50913
University of Texas at Austin. 1            The University is an entity within the
University of Texas System and governed by the Board of Regents of the
System. Tex. Educ. Code § 67.02. The University’s Division of Continuing
Education sought the creation of UT High School to “grant course credit and/or
a high school diploma through the Independent and Distance Learning
program.” 2 The University of Texas at Austin is “inarguably a state agency,”
Saenz v. Univ. Interscholastic League, 487 F.2d 1026, 1027 (5th Cir. 1973), that
is entitled to sovereign immunity, Chhim v. Univ. of Tex. at Austin, 836 F.3d
467, 469 (5th Cir. 2016). See also Tex. Const. art. VII, § 10 (requiring the
Legislature to establish the University of Texas); Tex. Gov’t Code
§ 572.002(10)(B) (including university systems in the definition of “State
agency”).
       It follows that UT High School, as a department within the University of
Texas at Austin, is also an instrumentality of the State of Texas. See United
States ex rel. King v. Univ. of Tex. Health Sci. Ctr.–Houston, 544 F. App’x 490,
495 (5th Cir. 2013) (observing that because the Health Science Center is “part
of the University of Texas System,” the first Clark factor favored treating the
Center as an arm of the State of Texas); see also Saenz, 487 F.2d at 1027–28
(holding that an interscholastic league administered by the Extension Division




       1  In reviewing a motion to dismiss for lack of jurisdiction, “the court may consider any
of the following: ‘(1) the complaint alone; (2) the complaint supplemented by the undisputed
facts evidenced in the record; (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.’ ” Walch v. Adjutant Gen’s. Dep’t of Tex., 533 F.3d 289,
293 (5th Cir. 2008) (quoting Robinson v. TCI/US W. Cable Commc’ns Inc., 117 F.3d 900, 904
(5th Cir. 1997)).

       2This description of the purpose of UT High School comes from the Texas State Board
of Education meeting minutes of which Sissom asks us to take judicial notice for the first
time on appeal. UT High School also refers to these meeting minutes throughout its brief.
We take judicial notice of the meeting minutes. See Doe v. McKesson, 922 F.3d 604, 613 (5th
Cir. 2019).
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                                  No. 17-50913
of the University of Texas “constitutes a governmental entity outside the ambit
of the Sherman Act”).
      The second Clark factor—source of funding—favors treating the UT
High School as the state’s instrumentality. In filing his complaint, Sissom
attached a copy of the receipt for his payment of course fees. The receipt shows
that Sissom paid his fees not to UT High School, but to the University of Texas
at Austin, which in turn issued the receipt. The fact that Sissom’s payment
went to the University supports UT High School’s argument that, unlike an
ordinary school board, it is dependent on the University, a state agency, for its
funding. Although the Texas Board of Education meeting minutes show that
UT High School was approved under the condition that “[n]o state funds shall
be used to support the program,” UT High School contends that this means
that UT High School cannot receive any other funding from the state except
through the University. We conclude that UT High School’s argument is
consistent with the record evidence that Sissom himself provided: Students
pay the University for attending UT High School. Thus, we hold that the
second Clark factor favors treating UT High School, which is dependent on the
University for funding, as an arm of the state.
      The third Clark factor—autonomy—also favors UT High School. The
available record evidence provided by Sissom shows that UT High School is
governed by the University. The fourth Clark factor—scope of the problem—
further favors UT High School. We previously noted that “[e]ducation and
research are statewide concerns.”      King, 544 F. App’x at 498.         But more
importantly, UT High School is an online program available to all residents in
the State of Texas and not confined to a specific locality.
      Whom the fifth Clark factor—ability to sue and be sued in its own
name—favors is unclear. Neither party has pointed us to a case in which UT
High School was a party, or was named a party, in a suit. However, Sissom’s
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                                      No. 17-50913
documents show that the University’s associate vice president for legal affairs
corresponded with Sissom to address his concerns, which tends to support the
proposition that UT High School may not have the ability to sue and be sued
on its own. Ultimately, however, we cannot make a conclusion as to which
party this factor favors. The last Clark factor—ability to hold property—favors
UT High School. The Board of Regents of the University of Texas System
controls the management of the University’s property, including UT High
School’s. See Tex. Educ. Code § 65.39. Furthermore, Sissom’s payment of fees
to the University demonstrates that the University—not UT High School—
controls UT High School’s funds and property.
       We conclude that UT High School is an instrumentality of the State of
Texas that enjoys sovereign immunity. 3               Accordingly, the district court
properly dismissed Sissom’s complaint for lack of subject matter jurisdiction
under the Eleventh Amendment. 4
                                            IV.
       Although Sissom claims to appeal the district court’s dismissal of his
complaint as to the University of Texas, Cooper, Rosen, and Walls in the table
of contents of his opening brief, the argument section of his brief does not
provide or develop any argument on why the district court’s dismissal was
erroneous as to these defendants. “Although [this court] liberally construe[s]
the briefs of pro se appellants, [this court] also require[s] that arguments must
be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).



       3For the first time in this litigation, Sissom also asks this court to disqualify the
Attorney General of Texas from representing UT High School as defense counsel on the
grounds that UT High School is not a valid school district that could be represented by the
Attorney General under state law. Because Sissom failed to raise this issue below, we decline
to address it.

       Because we lack jurisdiction, we need not determine whether Sissom’s “gaslighting”
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and RICO claims are cognizable and pleaded sufficiently to survive Rule 12(b)(6).
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                                  No. 17-50913
Because Sissom has offered no basis to reverse the district court’s analysis as
to the University, Cooper, Rosen, and Walls, we hold that Sissom’s appeal of
the dismissal as to these defendants was abandoned.            United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument
on appeal, but fails to adequately brief it, is deemed to have waived it.”).
                                       V.
      For the foregoing reasons, we AFFIRM the dismissal of Sissom’s
complaint.




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