Barbara M. G. Lynn

ADA Title II (architectural-barrier suits): under Frame v. City of Arlington (5th Cir. 2010, en banc), sidewalks, curbs, and parking lots are 'infrastructure'/'facilities'/'gateways' -- NOT 'services, programs, or activities.' A plaintiff challenging a noncompliant ramp or parking lot states no Title II claim unless the noncompliance denies her meaningful access to an actual service, program, or activity; she must correlate the physical violation to a deprivation of access.

“the Fifth Circuit found that sidewalks, curbs, and parking lots are not services, programs, or activities within the meaning of Title II, but are, instead, 'infrastructure,' 'facilities,' or gateways to services, programs, or activities. ... no claim is stated by a suit challenging the condition of sidewalks, curbs, and parking lots, unless the condition results in a denial of access to a service, program, or activity.”

Motions for reconsideration: she applies the Lavespere rule -- a motion served within 10 days of judgment is treated under Rule 59(e), later ones under Rule 60(b); Rule 59(e) relief is appropriate when there has been an intervening change in the controlling law. She will reopen to apply new binding Fifth Circuit authority both parties concede controls.

“Relief under Rule 59(e) is appropriate when there has been an intervening change in the controlling law. ... where recent Fifth Circuit case law constitutes controlling authority which this Court earlier noted was lacking, Rule 59(e) relief is warranted.”

Government-enforcement defenses: laches is unavailable against the United States/an agency enforcing a public right (Arrow Transp.; the narrow EEOC back-pay exception does not extend), and after AMG Capital Mgmt. v. FTC (2021) the FTC cannot obtain monetary/equitable-restitution relief under FTC Act 13(b) -- only injunctive relief. She strikes such affirmative defenses on the pleadings (FTC v. Neora).

“the FTC is operating in a sovereign capacity for the protection and furtherance of public rights and interests ... the affirmative defense of laches does not apply.”

Immigration adjudication-delay suits: 8 U.S.C. 1252(a)(2)(B) strips jurisdiction over Mandamus Act claims challenging USCIS's pace of adjudicating discretionary I-485 adjustment applications (Bian v. Clinton 'dispositive'), and the APA does not reach action 'committed to agency discretion by law.' Such suits are dismissed for lack of subject-matter jurisdiction (without prejudice).

“Congress has expressly precluded judicial review of the USCIS's pace of adjudication when the agency acts within its discretion and pursuant to the regulations that the agency deems necessary for carrying out its statutory grant of authority.”

Employment-discrimination pleading (1981 / Title VII): she will NOT apply the summary-judgment evidentiary standard at the Rule 12(b)(6) stage, and repeatedly faults defendants who cite SJ-stage cases (Alkhawaldeh, Fonteneaux) in support of dismissal. A plaintiff who alleges a White/non-protected comparator was promoted/retained under similar circumstances states a claim; applies Hamilton v. Dallas Cnty. (5th Cir. en banc 2023) for the adverse-action element.

“Defendant's Motion primarily relies upon Alkhawaldeh ..., which concerned summary judgment, not a motion to dismiss. The Court will not hold Plaintiff to the higher summary judgment standard at this phase and denies the Motion as to Plaintiff's Title VII claims.”