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Judicial Watch • Johnson v Houston Appellant Brief 01272011

Johnson v Houston Appellant Brief 01272011

Johnson v Houston Appellant Brief 01272011

Page 1: Johnson v Houston Appellant Brief 01272011

Category:General

Number of Pages:27

Date Created:January 27, 2011

Date Uploaded to the Library:February 20, 2014

Tags:Wrongful, Axelrod, Appellant, death, sergeant, action, Julie, amendment, Houston, officer, Johnson, September, plaintiff, states, court, united, EPA, IRS, ICE, CIA


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No. 10-20743 THE UNITED STATES COURT APPEALS 
FOR THE FIFTH CIRCUIT 
 
_______ 
 
JOSLYN JOHNSON, 
 
Plaintiff-Appellant, 
 
CITY HOUSTON; HOUSTON POLICE DEPARTMENT, 
 
Defendants-Appellees. 
 
_______ APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT TEXAS 
_______ 
 
BRIEF FOR APPELLANT 
_______ 
 
 
 
 
 
 
 
Paul Orfanedes 
Julie Axelrod 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 
(202) 646-5172 
 
Attorneys for Plaintiff-Appellant
CERTIFICATE INTERESTED PERSONS 
JOSLYN JOHNSON, 
 
 Plaintiff-Appellant,         No. 10-20743 
 
CITY HOUSTON; HOUSTON POLICE DEPARTMENT, 
 
 Defendants-Appellees. 
  
 The undersigned counsel record certifies that the following listed persons and entities described the fourth sentence Rule 28.2.1 have interest the outcome this case.  These representations are made order that the judges this Court may evaluate possible disqualification recusal: Joslyn Johnson; The City Houston; The Houston Police Department; Harold Hurtt his Capacity Chief Police the Houston Police Department; Ben Dominguez, II, Counsel for Plaintiff-Appellant the district court; Paul Orfanedes, Counsel for Plaintiff-Appellant the appellate court; Julie Axelrod, Counsel for Plaintiff-Appellant the appellate court; Judicial Watch, Inc., Counsel for Plaintiff-Appellant the appellate court; Jaqueline Leguizamon, City Houston Legal Department, Counsel for Defendants-Appellees the district court; and  
 10. Andrea Chan, City Houston Legal Department, Counsel for Defendants-Appellees the appellate court. 
Dated:  January 27, 2011    JUDICIAL WATCH, INC. 
 
       /s/ Julie Axelrod 
        
 Paul Orfanedes 
       Julie Axelrod 
       435 Third Street, SW, 
       Suite 800 
       Washington,  20024 
       (202) 646-5172 
 
       Attorneys for Plaintiff-Appellant 
 
  
REQUEST FOR ORAL ARGUMENT 
 The Plaintiff-Appellant, Joslyn Johnson, respectfully requests oral argument.  This appeal presents the issue when the doctrine res judicata precludes parties from litigation.  Oral discussion the facts and the applicable precedent would benefit the panel.  See Fed. App. 34(a)(1). 
  
TABLE CONTENTS 
 
 
CERTIFICATE INTERESTED PERSONS ......................................................... 
 
REQUEST FOR ORAL ARGUMENT ................................................................... iii 
TABLE AUTHORITIES ..................................................................................... 
JURISDICTIONAL STATEMENT .......................................................................... 
 
STATEMENT ISSUE PRESENTED FOR REVIEW ........................................ 
 
STATEMENT THE CASE .................................................................................. Nature the Case, Course Proceedings, and Disposition Below .............. Statement the Facts ...................................................................................... 

SUMMARY THE ARGUMENT ........................................................................ 
ARGUMENT ............................................................................................................. Standard Review.......................................................................................... Legal Standard Governing Res Judicata ....................................................... Sergeant Johnsons First Amendment Action Not Barred Res Judicata ....................................................................................................................... The Facts Each Case Are Not Related Time, Space, Origin, Motivation ........................................................................................... The Two Cases Not Form Convenient Trial Unit ...................... Trying the Cases Together Does Not Meet Any Expectations Business Understanding Usage the Parties ................................ 

 
CONCLUSION ........................................................................................................ 
CERTIFICATE COMPLIANCE WITH RULE 32(a)  ..................................... 
 
CERTIFICATE SERVICE ................................................................................ 
TABLE AUTHORITIES 
 
Cases           Pages 
 
Davis Dallas Area Rapid Transit, 383 F.3d 309 (5th Cir. 2004)  ............... 9-11, 
 
GLF Construction Corp. LAN/STV Inc., 414 F.3d 553 (5th Cir. 2005)  ................ re: Robert Warren Paige, 610 F.3d 865 (5th Cir. 2010)  ..................................... 
 
Lafreniere Park Foundation Broussard, 221 F.3d 804 
 (5th Cir. 2000)  ................................................................................................ 
 
Manning City Auburn, 953 F.2d 1355 (11th Cir. 1992)   ................................. 
 
Montana United States, 440 U.S. 147 (1979)  ..................................................... 
 
Oreck Direct LLC Dyson Inc., 560 F.3d 398 (5th Cir. 2009)  ........................ 10-11 
 
United States Davenport, 484 F.3d 321 (5th Cir. 2007)  ........................................ 
 
United States Lockheed Martin Engineering and Science  
 Services Co., 336 F.3d 346 (5th Cir. 2003)  ....................................... 11-12, 
 
 
Statutes and Rules U.S.C.  1291 .......................................................................................................... U.S.C.  1983 ..................................................................................................... 1,4 
 
Fed. App. 4(a)(1)(A)  ............................................................................................ 
 
 
 
 
 
 
 
No. 10-20743 THE UNITED STATES COURT APPEALS 
FOR THE FIFTH CIRCUIT 
 
_______ 
 
JOSLYN JOHNSON, 
 
Plaintiff-Appellant, 
 
CITY HOUSTON; HOUSTON POLICE DEPARTMENT, 
 
Defendants-Appellees. 
 
_______ APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT TEXAS 
 
BRIEF FOR APPELLANT 
 
JURISDICTIONAL STATEMENT 
 
 This appeal from final judgment the district court civil case. Jurisdiction the District Court was based U.S.C.  1983, Plaintiff-Appellant brought action for violation her First Amendment rights.  The jurisdiction this Court invoked pursuant U.S.C.  1291.  This appeal timely because the District Court entered its final judgment September 30, 2010 and Plaintiff-Appellant filed Notice Appeal pursuant Fed. App. 4(a)(1)(A) November 2010.  USCA5 
STATEMENT ISSUE PRESENTED FOR REVIEW Whether the doctrine res judicata precludes police officer from seeking enjoin policies, practices, and procedures city and police department that limit the officers ability contact and communicate with federal immigration officials when that same officer, acting her capacity the executrix the estate fellow officer killed the line duty, previously asserted unsuccessful claims for money damages against the city and police department, behalf the deceased officers estate, alleging that prior versions these same policies, practices, and procedures had contributed the officers death. 
STATEMENT THE CASE Nature the Case, Course Proceedings, and Disposition Below September 21, 2009, Plaintiff-Appellant Joslyn Johnson, sergeant the Houston Police Department, commenced this action against the City Houston (the City), the Houston Police Department (HPD), and former Chief Police Harold Hurtt (Chief Hurtt), his official capacity, the 151st Judicial District Harris County, Texas.  USCA5 233.  The lawsuit challenges current policies, practices, and procedures the HPD that restrict Sergeant Johnsons ability contact and communicate with federal immigration officials regarding the citizenship immigration status persons she encounters carrying out her 
duties and responsibilities police officer.  Sergeant Johnson alleges that the HPDs current policies, practices, and procedures violate her rights, including her right free expression under the First Amendment and her right U.S. citizen communicate with federal officials about possible violations federal law.  USCA5 114, 116, 234.  Sergeant Johnson seeks mandamus, declaratory, and injunctive relief remedy for her claims (the First Amendment Action).  USCA5 15, 99, 234.  She does not seek damages.  Id. February 2010, the City removed Sergeant Johnsons lawsuit the U.S. District Court, Southern District Texas.  USCA5 99, 249. February 2010, the City and the HPD filed motion dismiss, arguing, among other legal theories, that Sergeant Johnsons claims were barred the doctrine res judicata.  Specifically, the City and the HPD argued that Sergeant Johnsons claims this action were precluded 2008 action that had unsuccessfully sought money damages from the City for the homicide Officer Rodney Johnson, fellow HPD police officer and the husband Sergeant Johnson.  USCA5 105.  Officer Johnson was killed the line duty previously deported alien who had had multiple contacts with the HPD after illegally reentering the United States.  Because HPD policies effect the time, however, the alien had not been reported federal immigration officials and remained large.  USCA5 20.  The action was brought against the City Officer 
Johnsons estate (the Wrongful Death Action).  USCA5 100, 232, 249.  Sergeant Johnson was the Executrix Officer Johnsons estate. the Wrongful Death Action, the estate Officer Johnson had asserted various claims, including claim for negligence under the Texas Tort Claims Act, claim for gross negligence, and claim under U.S.C.  1983 alleging that the HPDs policy had deprived Officer Johnson his life and liberty violation the due process provision the 14th Amendment the U.S. Constitution.  USCA5 232-233.  The City removed the Wrongful Death Action federal court December 30, 2008, then moved dismiss.  USCA5 232-33. September 30, 2009, the district court granted the Citys motion dismiss both the estates  
 1983 claim and its state law claim for gross negligence.  USCA5 233.  The district court remanded the estates negligence claim state court.  Id.   
 Exactly one year later, September 30, 2010, the district court the First Amendment Action granted the Citys and the HPDs motion dismiss the grounds res judicata.  USCA5 247.   Plaintiff filed timely Notice Appeal November 2010.  USCA5 Statement the Facts 
 Prior the September 21, 2006 shooting death Officer Johnson Juan Leonardo Quintero-Perez, unlawfully present alien who had been deported following conviction for indecency with minor, but illegally reentered the 
United States and thereafter had multiple interactions with the HPD, General Order 500-05 stated pertinent part:  Officers shall not make inquiries the citizenship status any person .  USCA5 19-21.  Following Officer Johnsons death, the HPD changed its policies, practices, and procedures.  USCA5 21.  Specifically, the HPD issued Circular No. 06-1010-298, authorizing officers check the wanted status anyone who legally detained and affirmatively requiring officers check the wanted status anyone who has been ticketed, arrested, and/or jailed.  USCA5 21-22.  The officer then runs the arrestees name through the National Crime Information Center (NCIC) database, which may reveal whether the person the subject any outstanding wants warrants.  USCA5 22.  The officer may contact U.S. Immigration and Customs Enforcement (ICE) only the officer receives hit from this database, indicating that person the subject outstanding criminal warrant issued ICE, administrative warrant removal, notice detainer for previously deported felon.  Id.   
Not all previously deported aliens are included the NCIC database, however.  Id. The only aliens included are those convicted and deported for drug trafficking, firearms trafficking, serious violent crimes.  USCA5 22-23.  Aliens deported for any other reasons are not included the database.  USCA5 23.  Consequently, not clear that Quintero-Perez, who was deported following his 
conviction for indecency with minor, would have been identified previously deported felon the NCIC database even the officers who arrested detained Quintero-Perez before killed Officer Rodney Johnson had checked his wanted status.  Id.   
ICE operates and maintains broad range databases regarding persons citizenship and immigration status, and makes this information available other law enforcement agencies whose policies, practices, and procedures allow them access it.  Id. this regard, 1994, the Law Enforcement Support Center (LESC) was established what was then known the U.S. Immigration and Naturalization Service provide timely, accurate information local, state, and federal law enforcement agencies individuals arrested, suspected, under investigation for criminal activity.  Id.  LESC operates hours day, days week assisting law enforcement agencies with information gathered from wide range databases and intelligence resources, including ICE immigration databases, the NCIC, the Interstate Identification Index, the Student and Exchange Visitor Information System, the U.S. Visitor and Immigrant Status Indicator Technology System, and the National Security Entry-Exit Registration System.  According ICE Fact Sheet, [t]he primary users the LESC are state and local law enforcement officers the field who need information about foreign nationals they encounter the course their daily duties.  USCA5 23-24. limiting officer checking the wanted status, via the NCIC database, person who lawfully detained, ticketed, arrested, jailed, the HPD substantially restricts the officer's ability obtain information from ICE about that persons immigration status, whether legal, illegal, criminal.  USCA5 24.  Even when persons immigration status becomes known officer, such person identifies himself herself illegal alien previously deported alien, current HPD policies, practices, and procedures substantially restrict the officer's ability report that information ICE.  Id. this regard, HPD General Order 500-05 states, pertinent part:  Officers will contact [ICE] regarding person only that person arrested separate criminal charge (other than class misdemeanor) and the officer knows the prisoner illegal alien.  Id.  Thus, officer prohibited from notifying ICE about persons who identify themselves illegal previously deported aliens but are not arrested.  Similarly, officer prohibited from notifying ICE about known illegal aliens, including previously deported aliens, whom the officer encounters, unless the aliens are charged with class misdemeanor higher offense.  Id. the time Sergeant Johnson was sworn HPD Officer, she took the following oath: solemnly swear that will faithfully execute the duties the office Regular Officer the City Houston, Texas, and will the best ability preserve, protect, and defend the Constitution 
and laws the United States and this State and City. help God. 
 
USCA5 19. addition, officer the HPD, Sergeant Johnson charged City Ordinance 34-21 with the duty detecting and preventing crimes, and arresting violators the law.  Id. order fulfill these duties and responsibilities, Sergeant Johnson seeks have the ability contact LESC other appropriate ICE offices request provide information about the immigration status persons she lawfully encounters officer the HPD.  USCA5 25.  She currently restricted from doing HPD policies, procedures, and practices.  USCA5 and 25.  These restrictions have injured Sergeant Johnson harming her ability fulfill her oath and otherwise carry out her duties and responsibilities law enforcement officer.  USCA5 25.  HPDs policies, practices, and procedures also harm Sergeant Johnson restricting her freedom expression.  Id.  
SUMMARY THE ARGUMENT 
 The claims brought the estate Officer Johnson the Wrongful Death Action not arise from the same transaction the claims brought Sergeant Johnson the First Amendment Action.  The facts and legal theories issue the Wrongful Death Action revolve around the circumstances Officer Johnsons death September 21, 2006 and whether the policies, practices, and procedures the HPD effect the time contributed Officer Johnsons death placing him unreasonable danger. contrast, the facts and legal theories issue the First Amendment Action concern whether the restrictions imposed the HPD 2009 Sergeant Johnsons contacts and communications with federal immigration officials are lawful and constitutional.  The two claims are not related time, space, origin, motivation and would not have formed convenient trial unit.  Nor would trying them together have conformed the parties expectations business understanding usage, achieved any judicial economies, avoided any inconsistent opinions.  Res judicata does not apply. 
ARGUMENT Standard Review appellate court reviews novo trial courts dismissal case without hearing based the doctrine res judicata, claim preclusion.  The appellate court reviews the res judicata effect prior judgment novo because question law.  United States Davenport, 484 F.3d 321, 326 (5th Cir. 2007).  See also, Davis Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004).  Res judicata affirmative defense and the party seeking assert bears the burden proof.  GLF Construction Corp. LAN/STV Inc., 414 F.3d 553, 555 (5th Cir. 2005). Legal Standard Governing Res Judicata  
 The doctrine res judicata prevents parties from relitigating issues that have already been decided.  Res judicata insures the finality judgments and thereby conserves judicial resources and protects litigants from multiple lawsuits.  Oreck Direct LLC Dyson Inc., 560 F.3d 398, 401 (5th Cir. 2009) (citations omitted).  To preclude parties from contesting matters that they have had full and fair opportunity litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance judicial action minimizing the possibility inconsistent decisions.  Montana United States, 440 U.S. 147, 153-154 (1979).  But res judicata only operates bar claim when four factors are present:  (1) the parties both the prior suit and the current suit must identical; (2) court competent jurisdiction must have rendered the prior judgment; (3) the prior judgment must have been final and the merits; and (4) the plaintiff must raise the same cause action both suits.  Davis Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004). 
 The final factor, whether not the plaintiff has raised the same cause action both suits, generally the most complicated determine and often the only factor issue. determine whether the prior and current suits involve the same cause action, courts apply the transactional test which requires that the 
two actions based the same nucleus operative facts.  Oreck, 560 F.3d 402; re: Robert Warren Paige, 610 F.3d 865, 872 (5th Cir. 2010).  The new claim must involve the same transaction series transactions that were involved the prior claim.  Davis, 383 F.3d 313.  What constitutes transaction series transactions determined pragmatically, weighing various factors such whether the facts are related time, space, origin, motivation, whether they form convenient trial unit, and whether their treatment trial unit conforms the parties expectations business understanding usage.  Id. different cause action should differ the theories recovery, the operative facts, and the measure recovery.  United States Lockheed Martin Engineering and Science Services Co., 336 F.3d 346, 359 (5th Cir. 2003) (citations omitted). 
 The mere presence factual overlap between the facts alleged the first claim and the facts alleged the second claim does not mean that the two claims form convenient trial unit for purposes claim preclusion.  Id.  For instance, the subject matter one suit revolves around different question than the other, and the centerpiece evidence related one claim will have nothing with the proof necessary for the other, such difference weighs against preclusion.  Id. court can find lack convenience trying two cases together, even when factual underpinnings each suit are related.  When factual comparison shows plaintiffs claims primarily arise out different facts, courts will decline bar the new claim.  Id. 360. Sergeant Johnsons First Amendment Action Not  
  Barred Res Judicata 
 
 The Wrongful Death Action brought Sergeant Johnson her capacity the Executrix the Estate Officer Johnson alleged that the City was liable Officer Johnsons estate for money damages because the HPD policies, practices, and procedures effect the time placed Officer Johnson unreasonable danger and proximately caused his death 2006.  That damage action does not preclude Officer Johnsons widow, Sergeant Johnson, from bringing separate action against the City, her personal capacity, seeking declaratory and injunctive relief because, 2009, the HPDs subsequently revised policies, practices, and procedures violate her right freedom expression and are otherwise illegal.  These two separate actions fail meet the test for applying res judicata, because, not only are the parties not technically identical, but they not fulfill the essential element asserting the same causes action.  The central question around which the two lawsuits revolve entirely and materially different.  See, e.g., Lockheed Martin, 336 F.3d 359. issue the Wrongful Death Action was whether the HPDs policies effect the time placed Officer Johnson unreasonably dangerous position and proximately caused his death September 2006. issue the First 
Amendment Action whether the U.S. Constitution, federal law, and the Texas Constitution permit the HPD limit Sergeant Johnsons contacts and communications with federal immigration officials 2009.  The question the HPDs culpability for Officer Johnsons death the Wrongful Death Action hinged whether the HPD policies effect the time proximately caused Officer Johnsons death and whether the City could held liable for damages Officer Johnsons estate. the First Amendment Action, contrast, all the facts relating Officer Johnsons homicide are immaterial.  While the unfortunate death Officer Johnson September 2006 may serve illustrate one reason why the HPDs policies, practices, and procedures immigration are ill-advised matter public policy, his death has bearing the legal question whether the HPDs subsequently revised policies, practices, and procedures governing contacts and communications with federal immigration officials 2009 are unconstitutional restriction speech otherwise violate federal law.  When the City won judgment that avoided liability for Officer Johnsons homicide, did not also win judgment that upheld restrictions Sergeant Johnsons contacts and communications with federal immigration officials the future.  
 The test for res judicata applied pragmatically weighing whether the facts involved the Wrongful Death Action and the First Amendment Action are related time, space, origin, motivation, whether the two claims form 
convenient trial unit, and whether their treatment unit conforms the parties expectations.  See, e.g., Lafreniere Park Foundation Broussard, 221 F.3d 804, 810 (5th Cir. 2000), Davis 383 F.3d 313.  The two cases under discussion fail all factors. The Facts Each Case Are Not Related 
   Time, Space, Origin, Motivation 
 
 The two actions issue originated different times, under different factual circumstances, and have different motivations.  The origin the Wrongful Death Action was, quite obviously, the death Officer Johnson September 21, 2006.  The motivation behind the lawsuit was seek compensation for Officer Johnsons estate from the City.  The origin the First Amendment Action was the HPDs policies, practices, and procedures, instituted their current form after Officer Johnsons death, that substantially restricted Sergeant Johnsons contacts and communications with federal immigration officials 2009 and continue so.   
 Sergeant Johnson brought the First Amendment claim response HPDs continuing restrictions her rights freedom expression and communicate with federal officials.  Her motivation was force the City and the HPD stop restricting her rights freedom expression and communicate with federal officials that she could fulfill her duties police officer and obey the oath she took when she joined the police force. this action, determination will made about whether the HPDs current policy, practices, and procedures 
contributed Officer Johnsons death September 2006, these current policies, practices, and procedures did not even exist until after his death.  Only claims that are existence the time the original complaint filed can precluded.  Manning City Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992). The Two Cases Not Form Convenient 
   Trial Unit 
 
  The cases not form convenient trial unit for several reasons.  First, Sergeant Johnson has brought these actions entirely different capacities.  See e.g. Lockheed Martin, 336 F.3d 359 (two cases brought different capacities are not the same cause action).  Second, the facts and legal theories tried vary widely:  the central questions the first action concern the circumstances Officer Johnsons death and legal theories regarding when police department can held liable for the death one its officers, whereas the central question the second action concerns whether police officer has constitutional statutory right contact communicate with federal officials about possible violations federal law.  Adjudicating such diverse claims together, which require different proofs and different arguments, does not form convenient trial unit. 
 Not only are the facts and legal theories different, but the relief sought different well.  See Id. (the remedies sought and the measure recovery   are completely different.).  The Wrongful Death Action sought money damages, but the First Amendment Action seeks injunctive and declaratory relief only.  
Should the Wrongful Death Action have reached trial, determining remedy for the Estate Officer Johnson would have involved calculating the HPDs culpability and determining the amount damages suffered Officer Johnsons estate, based his salary, age, and other personal characteristics, among other factors.  The declaratory and injunctive relief sought Sergeant Johnson the First Amendment Action obviously entirely different nature. Trying the Cases Together Does Not Meet Any 
   Expectations Business Understanding  
   Usage the Parties 
 
 Trying these cases together also does not conform any expectations business understanding usage the parties. Tellingly, the City failed produce any evidence this regard. particular, failed produce any evidence demonstrating that plaintiffs who sue the City for wrongful death are expected assert later-in-time constitutional claims behalf other parties.  Nor should cities and police departments have any reasonable expectation that they are safe from suits officers for violations the officers constitutional and statutory rights because they previously were involved litigation concerning the death one their officers.  There certainly business understanding.    
 Finally, while the Court should mindful judicial economy and inconsistent opinions, such considerations not preclude litigation Sergeant Johnsons claims this case.  The claims brought Sergeant Johnson the First 
Amendment Action were neither raised nor ruled the Wrongful Death Action. ruling the merits the claims the present action will not create any inconsistencies judicial opinions.  Nor proper refuse hear new cases for the first time simply for the purpose judicial economy, which itself may not necessarily promoted dismissing this case.  Even the district courts dismissal Sergeant Johnsons claims the First Amendment Action stands, the causes action she has asserted will not have been adjudicated fully and finally, since they apply equally all officers the HPD and therefore can brought any officer the HPD.  Thus, this case may very well back before the courts, albeit with different plaintiff. 
CONCLUSION 
 For the foregoing reasons, the district courts dismissal Sergeant Johnsons First Amendment Action the basis res judicata should reversed, and this matter should remanded the district court for further proceedings. 
  
Dated:  January 27, 2011   Respectfully submitted, 
 
      JUDICIAL WATCH, INC. 
 
      /s/ Julie Axelrod 
       
Paul Orfanedes 
      Julie Axelrod 
      435 Third Street, SW, 
      Suite 800 
      Washington,  20024 
      (202) 646-5172 
 
      Attorneys for Plaintiff-Appellant 
  
CERTIFICATE COMPLIANCE WITH RULE 32(a) 
 
Certificate Compliance with Type-Volume Limitation,  
Typeface Requirements, and Type Style Requirements This brief complies with the type-volume limitation Fed. App. P.32(a)(7)(B) because: 

 
 this brief contains 3,852 words, excluding the parts the brief exempted Fed. App. 32(a)(7)(B)(iii). This brief complies with the typeface requirements Fed. App. 32(a)(5) and the type style requirements Fed. App. 32(a)(6) because: 

 
 this brief has been prepared proportionally spaced typeface using Times New Roman point font produced Microsoft Word 2010. 

 
 
 
       /s/  Julie Axelrod 
         
       Julie Axelrod 
       435 Third Street, S.W., Suite 800 
       Washington,  20024 
       (202) 646-5172 
Attorney for Plaintiff-Appellant 
Dated: January 27, 2011 
 
  
 
CERTIFICATE SERVICE hereby certify that January 27, 2011, true and correct copy the foregoing Brief for Appellant has been served electronically via this Courts ECF system the following: 
 
     Andrea Chan 
     City Houston       Legal Department      900 Bagby Street      Houston, 77002-0000 
 
        /s/  Julie Axelrod