# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 50434

**____________ Sammy Tawakkol,** 
Plaintiff —Appellee/Cross- Appellant **,**

versus
**Manager Sheila Vasquez,** in her o fficial c apacity as Manager of the Texas Department of Public Safety

- Sex Offender Registration Bureau **; Director Steven Mc**  **Craw,** in his o fficial c apacity as Director of the Texas Department of Public Safety **,** Defendants

— Appellants/Cross -Appellees

**.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 1:19

- CV

- 513

**______________________________** Before **Haynes** and **Engelhardt ,**  Circuit Judges , and de **Gravelles ,**  District Judge

**.** ***** **Haynes,** Circuit Judge **:** Sammy Tawakkol sued two Texas state officials , asserting that they violated his right to procedural due process when they notified him that he

**_____________________**

* United States District Judge f or the Middle District of Louisiana , sitting by designation. United States Court of Appeals Fifth Circuit 

### FILED August 24, 2023

Lyle W. Cayce Clerk Case: 22-50434 Document: 00516871596 Page: 1 Date Filed: 08/24/2023No. 22

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2 was required to register as a sex offender under Texas law

. After a bench trial, the district court entered judgment in Tawakkol’s favor. Because w e conclude that Tawakkol’s suit is barred by sovereign immunity , we **VACAT E**  and **REMAND** with instructions to dismiss for lack of jurisdiction.

I. Background

T his case implicates both the federal and Texas sex offender registration systems , so we begin with a brief overview of each

. At the federal level, the Sex Offender Registry and Notification Act (“SORNA”) sets out

a “comprehensive national system” for sex offender registration. 34 U.S.C. § 20901. SORNA requires any individual convicted of a quali fying “sex offense” to register as a “sex offender.” Id. §§ 20913(a), 20914. Q ualifying “sex offense s ” include, inter alia, certain “military offense [s] specified by the [United States] Secretary of Defense.” Id. § 20911 ( 5 ) (A) (iv)

. Although SORNA applies only at the federal level, Congress grants federal funds to state jurisdictions that agree to maintain their own parallel

sex

- offender registration and community

- notification laws. See id. §§ 20912(a), 20927. Relevant here is Texas ’s SORNA

- compliant sex offender registration system , Texas Code of Criminal Procedure article 62

. Under t hat system, an individual must register as an “extrajurisdictional” registrant in Texas if he would be “required to register as a sex offender under . . . fede ral law or the Uniform Code of Military Justice .” **T EX** 

**. C**  **ODE C**  **RIM**

**. P**  **RO C** 

**.** art. 62.001(10)(A)(ii).

W e turn now to t he facts of this case , which are straightforward and undisputed. When he was a cadet at the United States Air Force Academy, Tawakkol was caught sneaking into women’s restrooms and recording videos of female cadets while they were using the toilet

. Tawakkol pleaded guilty to violating Article 120c(a)(2) of the Uniform Code of Military Justice

. The Case: 22-50434 Document: 00516871596 Page: 2 Date Filed: 08/24/2023No. 22

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3 Secretary of Defense has designated Articl e 120c(a)(2) as a SORNA

qualifying “sex offense.” So, a s a result of this conviction , Tawakkol was required to register as a sex offender under SORNA

. Tawakkol later disenrolled from the Academy and moved to Houston, Texas . Once there, state officials determined that Tawakkol would be required to register as a sex offender under Texas’s system as well

. They concluded that Tawakkol’s status as a “sex offender” under federal law rendered him an extrajurisdictional sex offender under state law

— i n other words, his duty to register in Texas hinged solely on his duty to register under SORNA.

When state officials notified Tawakkol of their determination , Tawakkol filed this suit against two Texas Department of Public Safety employ ees 1 (the “State Defendants”) under 42 U.S.C. §§ 1983 and 1988. In his complaint, Tawakkol asserted that he had not committed a registrable sex offense

— therefore, he alleged that the State Defendants’ registration determination violated his procedural du e process rights under the Fourteenth Amendment

. After a bench trial, the district court issued findings of fact and conclusions of law determining that Tawakkol was entitled to injunctive relief

. Rather than address the procedural due process arguments as pleaded in Tawakkol’s complaint , the district court ’s conclusions instead hinged on its interpretation of federal law. The district court first analyzed the language of Congress’s delegation of authority to the Secretary of Defense to designate certai n crimes as SORNA

- qualifying “sex offenses.” It then concluded that

**_____________________**

1 Specifically, Tawakkol sued Sheila Vasquez, the Manager of the Texas Department of Public Safety’s Sex Offender Registration Bureau, and Steven McCraw, the Director of the Texas Department of Public Safety, in their official capacities

. Case: 22-50434 Document: 00516871596 Page: 3 Date Filed: 08/24/2023No. 22

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4 the Secretary of Defense had exceeded the scope of that authority in designat ing Artic le 120c(a) (2) as a “ sex offense

. ” The court thus reasoned that Tawakkol had no duty to register under federal law

— therefore the State Defendants lacked any basis to classify him as an extrajurisdictional offender under state law.

Based on these conclusions , the district court issued a final judgment (1 ) declaring that Tawakkol was “not required to register as a sex offender under federal or military law,” and , accordingly, (2) permanently enjoin ing the State Defendants from requiring Tawakkol to regist er in Texas

. The State Defendants appealed, and Taw akkol cross

- appealed.

II. Discussion Tawakkol invoked federal question jurisdiction under 28 U.S.C. § 1331 and jurisdiction over the claims for declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 1343(a), respectively. On appeal, however, the Stat e Defendants contend that the district court lacked subject matter jurisdiction because Tawakkol’s claims are barred by sovereign immunity. Accordingly, our analysis begin s and end s with that threshold issue.

We examine jurisdictional issues, such as sovereign immunity, de

novo. City of Austin v. Paxton , 943 F.3d 993, 997 (5th Cir. 2019). Sovereign immunity under the Eleventh Amendment precludes suits by private citizens against states in federal court. Id. This bar extends not only to the state itself, but also to claims against “state officials” in their official capacity when the state is the real party in interest

. Id. Here, Tawakkol is suing state officials who have not waived sovereign immunity

. 2 Accordingly , h is claims are barred in federal court unless an exception to sovereign immunity applies.

**_____________________**

2 T he State Defend ants concede that they raise sovereign immunity for the first time on appeal. Ordinarily, a failure to raise an issue below would constitute waiver, but Case: 22-50434 Document: 00516871596 Page: 4 Date Filed: 08/24/2023No. 22

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5 Tawakkol asks the court to apply the exception to sovereign immunity

ca rved out by the Supreme Court in Ex parte Young , 209 U.S. 123 (1908). This exception permits a plaintiff to seek an injunction “in federal court [to] prevent[] state executive officials from enforcing state laws that are contrary to federal law.” Whole Woman’s Health v. Jackson , 142 S. Ct. 522, 532 (2021) (citing Ex parte Young , 209 U.S. at 159

– 60). A plaintiff seeking to invoke the exception generally must satisfy two prongs. See City of Austin , 943 F.3d at
998. First , he must demonstrate that he is seeking proper relief

— declaratory or injunctive relief to prevent an ongoing violation of federal law

. See id. S econd, his suit must name the proper defendant

— generally the individual tasked with enforc ing the challenged act. See id. Tawakkol argues that his suit satisfies both requirements because he is seeking (1) injunctive and declaratory relief (2) against t he individuals tasked with enforcing Texas’s sex offender registration requirements. Before we address the merits of Tawakkol’s argument, we begin by explaining Ex parte Young ’s legal foundations

. Ex p arte Young is an exception

to sovereign immunity that comes into play when private litigant s seek to prevent state official s from enforcing a n unconstitutional state law

. See 209 U.S. at 159

– 68. It is rooted in the legal fiction that , in such circumstances, the defendant

- official is “stripped of his official or representative characte r and is subjected in his person to the consequences of his individual conduct. ” Id. at 160 ; see also Idaho v. Coe ur d’Alene Tribe of Idaho , 521 U.S. 261, 27 2

– 7 3

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“ [s] overeign immunity is jurisdictional,” and “[a] lack of subject matter jurisdiction may be raised a t any time.” Cozzo v. Tangipahoa Par. Council

– President Gov’t , 279 F.3d 273, 280 (5th Cir. 2002) (quotation omitted) (second alteration in original).
Of course , state sovereign immunity is waivable, see Meyers ex rel. Benzing v. Texas , 410 F.3d 236, 241 (5th Cir. 2005), but there’s no indication that the State Defendants waived sovereign immunity here, see id. (recognizing that a state must make a “‘ clear declaration’ that it intends to submit itself to federal court jurisdiction”). Case: 22-50434 Document: 00516871596 Page: 5 Date Filed: 08/24/2023No. 22

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6 (1997) (citing Ex parte Young , 209 U.S. at 159

– 60 ). In other words, the official

“ is ‘not the State for sovereign

- immunity purposes’ when ‘a federal court commands [him or her] to do nothing more than refra in from violating federal law .’” Williams ex rel. J.E. v. Reeves , 954 F.3d 729, 736 (5th Cir. 2020) (alteration in original) (quoting Va. Off. for Prot. & Advoc. v. Stewart , 563 U.S. 247, 255 (2011)). This fiction, the Supreme Court has said, is “ necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States

. ’” Pennhurst St ate Sch. & Hosp. v. Halderman , 465 U.S. 89, 105 (1984) (quoting Ex parte Young , 209 U.S. at 160); see also Green v. Mansour , 474 U.S. 64, 68 (1985)

. But the Supreme Court has also instructed that the exception must be “narrowly

construe d ” to serve only that original purpose. See, e.g. , Pennhurst , 465 U.S.

at 114 n.25 (observing that “it is a very narrow exception that will allow suit only under the[se] standards”); Va. Off. f or Prot. & Advoc. , 563 U.S. at 255 ( noting that “[t]he doctrine is limited to that precise situation”); Papasan v. Allain , 478 U.S. 265, 277 (1986) (stating that the exception is “tailored to conform as precisely as possible to those specific situations ” ). Accordingly, the Court has repeatedly declined to interpret the exception “expansive [ly] .” See, e.g. , Pennhurst , 465 U.S. at 106 (declining to extend where violati on was based on state law); Edelman v. Jordan , 415 U.S. 651, 678 (1974) (declining to extend where plaintiff sought retroactive relief); Green , 474 U.S. at 71 (declining to extend where the federal law violation was no longer “ongoing”). Ex parte Young ’s f oundations and the Supreme Court’s subsequent precedent lead us to conclude that it is inapplicable in this case

— the relief requested (1) falls outside the exception’s narrow confines, (2) does not serve the purpose of the exception, and (3) is unsupported by any caselaw. Case: 22-50434 Document: 00516871596 Page: 6 Date Filed: 08/24/2023No. 22

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7 To start, u nlike Ex parte Young , the injunctive relief that the district

court ordered did not enjoin the State Defendants from enforcing a state law that violated federal law. To be sure, t he district court ultimately did conclude that the State Defendants could not require Tawakkol to register as a sex offender under Texa s law

— b ut that conclusion was not b ased on a determination that the state registration system was unconstitutional

. Rath er, recall that Tawakkol was only required to register under Texas law because he was required to register under a federal law, SORNA. 3 Accordingly, the relief issued by the district court (1) invalidated only federal law and (2) prohibited the State Defendants from enforcing a state law merely because it was consiste n t with that federal law

. S uch novel relief falls squarely outside the narrow parameters articulated by Ex parte Young and its progeny. See, e.g. , 209 U.S. at 159

– 68; Pennhurst , 465 U.S. at 114 n.25; Va. Off. for Prot. & Advoc. , 563 U.S. at 255. What’s more, a pplying the exception to Tawakkol’s suit would not

serve Ex parte Young ’s purpose

. Because the district court’s order invalidate d a federal statute

— instead of affirming it

— invoking the exception here would not advance Ex parte Young ’s aim of “promot[ing] the vindication of federal rights.” Pennhurst , 465 U.S. at 105. Rather , a pplying the exception here would “stretch [ Ex parte You ng ] too far” and “upset the balance of federal and state interest s that [the exception] embodies.” Papasan , 478 U.S.
at 277.

**_____________________**

3 As noted above, th e district court determined that the Secretary of Defense lacked authority to designate the crime Tawakkol was convicted of a s a sex offense under SORNA. (Because we decide this case on jurisdiction, we do not address the merits of that determination)

. So , it reasoned that, because Tawakkol had no duty to register as a sex offender under federal law, the State Defendants lacked any basis to classify him as an extrajurisdictional registrant under state law. Case: 22-50434 Document: 00516871596 Page: 7 Date Filed: 08/24/2023No. 22

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8 Finally, i t is telling that Tawakkol fails to direct us to any authority

— from this court or elsewhere

— applying Ex parte Young in a similar way

. Given the Supreme Court’s repeated insistence on the exception’s narrow application and admonishment s against broadening its reach , we decline to extend Ex parte Young here

. Accordingly, in the absence of any other applicable exception, we conclude that sovereign immunity bars Tawakkol’s claims against the State Defendants.

III. Conclusion For the reasons discussed above, we **VACAT E**  the decision and
**REMAND** the case to the district cour t with instructions to dismiss for lack of jurisdiction. Case: 22-50434 Document: 00516871596 Page: 8 Date Filed: 08/24/2023