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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

SHELLEY GIPSON, § 

 § 

PLAINTIFF, § 

 § 

VS. § CA NO. 4:22-CV-00730-P 

 § 

WEATHERFORD COLLEGE OF THE PARKER § 

COUNTY JUNIOR COLLEGE DISTRICT, § 

 § 

DEFENDANT. § 

UNOPPOSED MOTION TO SUPPLEMENT THE RECORD ON APPEAL 

Pursuant to Fed. R. App. P. 10(e)(1),1 the undersigned counsel—the 

Appellant in Appeal No. 23-10397 (“the Appeal”), pending before the Fifth 

Circuit Court of Appeals—respectfully moves for an order to supplement the 

record on appeal. The motion is based on the following grounds. 

1. The Appeal is limited to a challenge to the District Court’s Order (ECF 66) 

which imposed monetary sanctions on counsel for the parties for the sole 

reason that instead of filing court ordered (ECF 63) affidavits with the Court, 

counsel filed declarations (ECF 64 and 65),2, 3 as expressly permitted by 

statute. 28 U.S.C. § 1746 (emphasis added): 

1 “(e) Correction or Modification of the Record. (1) If any difference arises 

about whether the record truly discloses what occurred in the district court, 

the difference must be submitted to and settled by that court and the record 

conformed accordingly.” 

2 Because these documents were “stricken” and “unfiled” (see ECF 66) 

copies of each are attached as Exhibits 1 and 2, respectively. 

3 ECF 66 (emphasis original): 

Counsel was then instructed to certify to the Court via an affidavit that 

they have read, understand, and will comply with these three 

documents throughout the remainder of this litigation. Id. (emphasis 

Footnote continued on next page . . . .

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Wherever, under any . . . order . . . any matter is required or permitted 

to be supported . . . by . . . affidavit . . . such matter may, with like force 

and effect, be supported . . . by the unsworn declaration . . . of such 

person which is subscribed by him, as true under penalty of perjury, 

and dated, in substantially the following form . . . .4

. . . footnote continued from previous page . . . .

added). The Court cautioned Counsel that a failure to comply with its 

Order would result in monetary sanctions. Id. 

Despite these unambiguous instructions, Plaintiff’s counsel Kevin M. 

Duddlesten and Defendant’s counsel John L. Ross both failed to comply 

with the Court’s Order by filing declarations instead of affidavits that 

were witnessed and authenticated by a notary public or commissioner 

of oaths. See ECF Nos. 64, 65. Accordingly, the Court concludes that 

sanctions should be imposed on Mr. Duddlesten and Mr. Ross in the 

amount of $250 each. 

4 See, e.g., Paters v. United States, 159 F.3d 1043, 1052, n. 5 (7th Cir. 

1998) (§ 1746 provides that a party may submit a declaration in lieu of an 

affidavit); Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994) (documents 

signed under penalty of perjury satisfy affidavit requirements in federal 

proceedings); Williams v. Browman, 981 F.2d 901, 904 (6th Cir. 1992) (“[T]he 

legislative history of the statute explicitly states that ‘[t]he purpose of this 

legislation is to permit the use in Federal proceedings of unsworn declarations 

given under penalty of perjury in lieu of affidavits.’ H.R. Rep. No. 1616, 94th 

Cong., 2d Sess. 1, reprinted in 1976 U.S.C.C.A.N. 5644.”); Sec. Nat. Bank of 

Enid, Okl. v. John Deere Co., 927 F.2d 519, 522 (10th Cir. 1991) (“district 

courts may not adopt and apply local rules that conflict with acts of Congress”); 

Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) 

(§ 1746 “permits unsworn declarations to substitute for an affiant’s oath 

if the statement contained therein is made ‘under penalty of perjury’ and 

verified as ‘true and correct.’”); Thomas v. U.S. Dep’t of Energy, 719 F.2d 

342, 345 (10th Cir. 1983) (“28 U.S.C. § 1746 (1976) specifically authorizes the 

use in federal proceedings of unsworn declarations given under penalty of 

perjury in lieu of affidavits.”); Carter v. Clark, 616 F.2d 228, 230-31 (5th 

Cir. 1980) (striking down local rule which required prisoner’s petitions to 

be notarized because the rule contradicted the very purpose of § 1746: 

“[§ 1746] was passed in 1976 for the purpose of permitting ‘the use in 

Federal proceedings of unsworn declarations given under penalty of 

perjury in lieu of affidavits’” irrespective of whether the “court is 

enamoured [sic] with the wisdom of Congress in enacting such a broad 

statute on this topic” or whether the statute “opens the judicial process 

to some abuse” is not for the courts to decide; the court “must only 

Footnote continued on next page . . . .

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2. Final judgment in this case was entered April 6, 2023. ECF 80. 

3. Notice of appeal was timely filed April 18, 2023. ECF 81. 

4. On May 8, 2023, the Clerk of the District Court filed the record on appeal 

with the Clerk of the Fifth Circuit. 

5. However, the District Court Clerk did not include ECF 64 and 65 in the 

record on appeal5 because the Court’s Order which is under review by the Fifth 

Circuit “struck” and “unfiled” the declarations of counsel. ECF 66 (emphasis 

original: “[T]he Clerk of the Court is INSTRUCTED to STRIKE and UNFILE Mr. 

Duddlesten’s declaration (ECF No. 64) and Mr. Ross’s declaration (ECF No. 

65).”). 

6. Yet, the declarations (ECF 64 and 65) were “relied upon in the district 

court and, thus, [are] material to the issue on appeal.” United States v. Hunt, 

2023 WL 2890176, at 1 (5th Cir. Apr. 11, 2023) (granting motion to 

supplement the record). 

. . . footnote continued from previous page . . . .

determine what Congress says the law is.”); Rice v. Mgbakor, 2009 WL 

3241330, at 6, n. 9 (N.D. Tex. Oct. 7, 2009) (“A party may rely on an unsworn 

declaration in lieu of an affidavit if the declaration satisfies the requirements of 

28 U.S.C. § 1746[.]”). 

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01/31/2023 64 ***STRICKEN AND UNFILED PER 66 *** AFFIDAVIT of Plaintiff's 

Counsel regarding compliance with ECF 63 by Shelley Gipson. 

(Duddlesten, Kevin) Modified on 2/1/2023 (sre). (Entered: 01/31/2023)

01/31/2023 65 ***STRICKEN AND UNFILED PER 66 *** NOTICE of DECLARATION

re: 62 Order Referring Motion,, filed by Weatherford College (Ross, John) 

Modified on 2/1/2023 (sre). (Entered: 01/31/2023)

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7. Accordingly, the Clerk should be directed to supplement the record on 

appeal by certifying the “unfiled” declarations (ECF 64 and 65, attached hereto 

as Exhibits 1 and 2) to the Court of Appeals.6

8. The Clerk should likewise be directed to supplement the record on 

appeal by including this motion and all proceedings thereon. 

CONCLUSIONS AND REQUESTED RELIEF 

For the foregoing reasons, the undersigned counsel, the Appellant in Appeal 

No. 23-10397, respectfully requests that the Court direct the Clerk to 

supplement the record on appeal in Fifth Circuit Appeal No. 23-10397 by 

including the following in the record on appeal: 

1. ECF 64; 

2. ECF 65; 

3. This unopposed motion, including its Exhibits 1 and 2 and the 

proposed orders submitted herewith; 

4. The Court’s ruling on the motion. 

Alternatively, the undersigned counsel, the Appellant in Appeal No. 23-

10397, respectfully requests that the Court vacate its prior Order (ECF 66) and 

direct the Clerk to refund the sanctions previously imposed by ECF 66. 

6 Alternatively, the Court could vacate its prior Order (ECF 66) and direct 

refund of the sanctions. Such an Order would moot the Appeal, save the 

further time and expense of the Appeal, avoid unnecessary imposition on the 

Fifth Circuit, and eliminate the necessity for the Fifth Circuit to rule on the 

propriety of the Court’s prior Order. See Razvi v. Dallas Fort Worth Int’l Airport, 

2022 WL 4298141, at 6 (5th Cir. Sept. 16, 2022) (dismissal of action over “a 

requirement of form” was judicial “overkill” and an abuse of discretion). 

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Respectfully Submitted, 

/s/ John L. Ross

JOHN L. ROSS 

Texas State Bar No. 17303020 

THOMPSON, COE, COUSINS & IRONS, L.L.P. 

700 North Pearl Street 

Suite 2500 

Dallas, Texas 75201 

Telephone: (214) 871-8206 

Fax: (214) 871-8209 

Email: jross@thompsoncoe.com

ATTORNEYS FOR DEFENDANT 

CERTIFICATE OF CONFERENCE 

I certify that on June 3, 2023, I conferenced the foregoing motion with 

Kevin Duddlesten, counsel for Plaintiff, who stated that he does not oppose the 

motion. 

/s/ John L. Ross

JOHN L. ROSS 

CERTIFICATE OF SERVICE 

Pursuant to Fed. R. Civ. P. 5(b)(2)(E) and 5(b)(3), I hereby certify a true and 

correct copy of the foregoing document was filed electronically and notice of the 

filing was thereby given to Plaintiff’s counsel on the date file-stamped by the 

Clerk. Parties may access this filing through the court’s electronic filing 

system. 

/s/ John L. Ross

JOHN L. ROSS 

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Exhibit 1

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Case 4:22-cv-00730-P Document 64 Filed 01/31/23 Page 2 of 2 PageID 906

Exhibit 1

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Case 4:22-cv-00730-P Document 65 Filed 01/31/23 Page 1 of 1 PageID 907

Exhibit 2

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