author: LESLIE H. SOUTHWICK, Circuit Judge:

text:
    Meredith MORRIS; Jeffrey Morris, Plaintiffs-Appellants v. Michael J. THOMPSON, Defendant-Appellee
    No. 16-50448
    United States Court of Appeals, Fifth Circuit.
    FILED March 27, 2017

      Blakely Ian Mohr, Esq., Trial Attorney, Mohr Law Firm, P.L.L.C., Caitlin B. Howell, Adam Jason Sabrin, Law Offices of Howell & Sabrin, San Antonio, TX, for Plaintiffs-Appellants.
    Erin R. McNiece, Laura Anne Cavaret-ta, Leslie Ernest Ratona, Jr., Marie K. Miller, Cavaretta, Ratona & Leighner, P.L.L.C., Leslie Ernest Katona, Jr., Plunkett, Griesenbeck & Mimari, Incorporated, San Antonio, TX, for Defendant Appellee.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   LESLIE H. SOUTHWICK, Circuit Judge:

Air Force Captain Meredith Morris and her husband Jeffrey sued another Air Force Captain, Michael Thompson, for injuries Captain Morris sustained on Randolph Air Force Base. Thompson filed a motion to dismiss for lack of subject-matter jurisdiction under the Feres doctrine, arguing that the injuries occurred incident to military service. The district court granted the motion. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

The incident at issue occurred on Randolph Air Force Base on May 20, 2011, during “Roll Call.” According to Thompson, Roll Call is a squadron-scheduled event, while Morris characterizes it as “unofficial” and “non-compulsory.” The parties agree that Roll Call is designed to foster, camaraderie and serve team-building purposes by allowing pilots the opportunity to come “together to share their experiences and tell stories.” The date and location of the incident are the only facts on which the parties agree.

Meredith Morris (“Morris” denotes Captain Morris and not her husband) claims that she was ordered to physically restrain Thompson during Roll Call when he displayed insubordinate behavior toward superior officers. As a result of this restraint, she claims Thompson grabbed her and “threw her to the ground,” which caused her to hit her head on the concrete. During the attack, Thompson “yelled pejorative, insulting, and threatening language” and subsequently choked Morris until she was unable to breathe. Before the attack ended, Morris claims Thompson “pushed her down with such force that her head again hit the concrete floor.” Morris alleges Thompson was intoxicated during their altercation, which Thompson denies.

Thompson has a different story. He claims that while he was talking to others, Morris attacked him from behind, while several other servicemembers attacked him from the front. The force of the attack, he says, caused him to fall backward and land on Morris. His assailants then attempted to “duct-tape [him], head and all, to the .concrete floor.” According to Thompson, he had recently suffered a traumatic brain injury at the time of the incident. During his rehabilitation, he had learned to protect his head because “impacts to his brain during recovery could have [had] catastrophic, if not deadly, consequences.” He thus alleges that any violent reaction on his part was defensive in nature.

Morris also claims injuries. She says the attack caused severe damage to her head, neck, and shoulders, which rendered her unable to fly. She also claims medical expenses, lost wages, and lost earning capacity, while her husband claims loss of consortium. Thompson, though, contends that Morris did not sustain any apparent injury at the time of the incident, nor did he observe her receiving medical treatment at that time.

The Morrises filed an administrative claim with the Air Force in May 2013, but it was denied. They then sued the United States in federal court in December 2013. That suit was dismissed in May 2014 due to application of the Feres doctrine, which we will later discuss in detail. That dismissal is not before us today.

A few days after they filed the administrative claim, the Morrises sued Thompson in his individual capacity in Texas state court, alleging various tort claims. Thompson did not receive service of process until October 2014. Thompson timely removed the case to the Western District of Texas based on diversity of citizenship. Thompson filed a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). He argued the case was nonjusticiable under the Feres doctrine because it is an action between military service members arising from activities occurring incident to service. The district court agreed and dismissed. The Morrises filed a timely notice of appeal.

■ DISCUSSION

We review de novo the district court’s grant of a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction “constantly bears the burden of proof that jurisdiction does in fact exist.” Id. When ruling on the motion, the district court may rely on the complaint, undisputed facts in the record, and the court’s resolution of disputed facts. Id. The motion should be granted only if it appears certain the plaintiff cannot prove any set of facts that would entitle her to recovery. Home Builders Ass’n of Mississippi Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The district court’s application of the Feres doctrine is also a question of law that earns de novo review. Hayes v. United States ex rel. United States Dep’t of Army, 44 F.3d 377, 378 (5th Cir. 1995).

The Morrises present these arguments: (1) the Feres doctrine does not bar state-law claims heard in federal court under diversity jurisdiction, and, regardless, the Feres doctrine does not apply as between members of the same rank; (2) the Feres doctrine is unconstitutional; and (3) at least Jeffrey Morris, a civilian, may sue Thompson for loss of consortium.

(1) Applicability of Feres to Claims Brought Under State Law and by Servicemembers of the Same Rank

The Feres doctrine is a narrow exception to tort liability under federal statute: “[T]he Government is not liable under the Federal Tort Claims Act [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950); see also Meister v. Texas Adjutant Gen.’s Dep’t, 233 F.3d 332, 336 (5th Cir. 2000). The Feres Court held the FTCA waived sovereign immunity, “putting the United States government in the same position as any other defendant.” Meister, 233 F.3d at 336.

After Feres, the Supreme Court “authorized a suit for damages against federal officials whose actions violated an individual’s constitutional rights.... ” Chappell v. Wallace, 462 U.S. 296, 298, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). In Chappell, though, the Court limited the Bivens remedy by holding “that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.” Id. at 305, 103 S.Ct. 2362. The Court later reaffirmed the applicability of the Feres incident-to-service test, requiring courts to abstain from interfering in cases arising .under such circumstances. United States v. Stanley, 483 U.S. 669, 683-84, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).

This court has categorized the Feres doctrine as one of justiciability. Filer v. Donley, 690 F.3d 643, 648-50 (5th Cir. 2012). Although the Supreme Court has only considered this issue in the context of FTCA and Bivens claims, we have held that Feres bars all lawsuits based on injuries incident to military service. See Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986). Relevant to this case, claims brought directly under state law are barred by Feres. Holdiness v. Stroud, 808 F.2d 417, 426 (5th Cir. 1987). In Holdiness, the plaintiff filed suit under 42 U.S.C. §§ 1983, 1985; the FTCA; and Louisiana state law. Id. at 420. We followed Chappell’s, command to hesitate before interfering in the relationships between military personnel and the preference for having those disputes adjudicated under the “unique structure of the military establishment.” Id. at 426. We held that judicial review of a state-law tort claim arising in this context would constitute an “unwarranted intrusion into the military personnel structure” about which the Court has previously warned. Id.

The Morrises allege that their case is distinguishable because Thompson removed on the basis of diversity of citizenship. We see no distinction. These are still state-law claims arising in a situation that was incident to service. “[Civilian courts may not sit in plenary review over intra-service military disputes.” Crawford, 794 F.2d at 1035. Feres bars state-law claims because adjudication “would undermine military decision-making as surely as federal claims held to be nonjusticiable.” Texas Adjutant Gen.’s Dep’t v. Amos, 54 S.W.3d 74, 78 (Tex. App.—Austin 2001, pet. denied).

The Morrises further argue that the Feres doctrine does not apply because Morris and Thompson held the same rank. It is true that the superior-subordinate relationship has at times been relevant in the articulation of the Feres doctrine. Chappell, 462 U.S. at 300, 103 S.Ct. 2362. Nonetheless, the Supreme Court does “not consider the officer-subordinate relationship crucial[.]” Stanley, 483 U.S. at 680, 107 S.Ct. 3054. In Stanley, the Army secretly administered LSD to the plaintiff in order to study its effect on human subjects. Id. at 671, 107 S.Ct. 3054. The Court “assume[d] that at least some of the defendants were not [his] superior officers.... ” Id. at 680, 107 S.Ct. 3054. Accordingly, the key consideration in applying Feres in Stanley was the incident-to-serviee test. Id. at 683-84, 107 S.Ct. 3054. Another circuit held that Feres applied even when the parties were of the same rank. Mattos v. United States, 412 F.2d 793, 794 (9th Cir. 1969) (per curiam). Feres requires that we avoid “judicial intrusion into the area of military performance[.]” Id. The relative rank of the plaintiff and defendant are of no moment.

Though neither party disputes that these events occurred incident to military service, we examine the test. We are to consider three factors: (1) the duty status of the service member; (2) the place where the injury occurred; and (3) the activity in which the service member was engaged at the time of the injury. Walch v. Adjutant Gen.'s Dep’t of Texas, 533 F.3d 289, 297 (5th Cir. 2008). The facts of this case involved actions taken by two active-duty service members on Randolph Air Force Base during a military training function. The Morrises claims are thus incident to service, and Feres applies regardless of the rank of the parties or the bringing of state-law claims.

(2) Constitutionality of Feres and (3) the Consortium Claim

The Morrises argue that the application of the Feres doctrine would interfere with their constitutional rights. They argue that not allowing them to sue military personnel violates their Fifth and Fourteenth Amendment rights, as well as of their right to access courts. These arguments fail. Though the Feres doctrine has been subject to criticism, United States v. Johnson, 481 U.S. 681, 692-703, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting), it is Supreme Court precedent binding on this court.

Finally, the Morrises concede that Jeffrey Morris’s loss-of-consortium claim, which is derivative of his wife’s claim, will be barred if hers is. See Schoemer v. United States, 59 F.3d 26, 30 n.5 (5th Cir. 1995). Because of our holding as to Meredith Morris’s claims, Jeffrey Morris’s loss-of-consortium claim also fails.

(3) Westfall Act

A new issue was presented for the first time at oral argument. The Morrises’ counsel argued that Feres does not apply because Thompson did not use the procedures of the Westfall Act to have the factual events on which the state-law claims are based certified as being incident to military service.

Oral argument is far too late a time to be injecting a new issue. Indeed, an issue not properly raised in the district court and timely briefed on appeal is not before us. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004). The Morrises’ counsel orally argued that two cases relevant to the argument were in fact cited in their briefing. The Morrises’ initial brief, though, cited just one of them and only to support that Feres does not apply to state-law claims. See Day v. Massachusetts Air Nat’l Guard, 167 F.3d 678 (1st Cir. 1999). That overstates what Day held, and, regardless, the brief makes no reference to Day’s discussion of the Westfall Act and certification. In the reply brief, the Morrises cited both Day and another opinion upon which they wish to rely. See Lutz v Sec’y of Air Force, 944 F.2d 1477, 1488 (9th Cir. 1991). That brief cited Day and Lutz for the proposition that incidents between servicemem-bers of equal rank and involving activities that were outside of the scope of employment are not subject to Feres. Westfall certification again went unmentioned. Even more importantly, questions about Westfall were not presented to the district court.

Despite the lateness of the issue, this court has an independent obligation to confirm that we have jurisdiction regardless of the parties’ arguments. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011). If Thompson’s failure to seek certification under the Westfall Act somehow affects our jurisdiction, we must consider the issue.

We thus examine just what the Westfall Act provides. Relevant here, when a federal employee is named m a tort suit, the Attorney General may certify that the employee was “acting within the scope of his office or employment at the time of the incident out of which the claim arose,” which will cause the federal employee to be dismissed and the United States substituted as the defendant. 28 U.S.C. § 2679(d)(1). This Act “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (citing 28 U.S.C. § 2679(b)(1)). For the first time in our courtroom, the Morrises raised that Feres cannot bar these claims because the Attorney General never declared anything about Thompson’s status as a federal employee at the time of the incident.

We see no jurisdictional defect in having a case proceed against a party who could but did not invoke a statutory procedure to gain immunity. Until immunity is claimed, the individual may be a proper party. Here, the Feres doctrine provided its own mechanism for determining the propriety of bringing suit against this airman.

There also was no error in allowing removal. Removal would have been conclusively established had there been a Westfall Act certification. Osborn, 549 U.S. at 231, 127 S.Ct. 881. Even without that basis, there was another basis for removal here — complete diversity of the parties. The failure of anyone to seek certification under Westfall does not divest us of the jurisdiction to resolve what is brought to us on this appeal.

AFFIRMED.

      . In an unpublished opinion, we recently reaffirmed our decision in Holdiness. Davidson v. United States, 647 Fed.Appx. 289, 290-91 (5th Cir. 2016). Other circuits have also held that Feres applies to state-law claims. See, e.g., John v. Sec'y of Army, 484 Fed.Appx. 661, 663-64 (3d Cir. 2012); Blakey v. U.S.S. Iowa, 991 F.2d 148, 152 (4th Cir. 1993).

      . The Morrises characterize the relevant language from Holdiness as dicta. Not so. In Holdiness, we analyzed each of the plaintiff’s claims, devoting an entire section to his state-law tort claim. See Holdiness, 808 F.2d at 421-26. There were two grounds on which the claim could have been dismissed, but most of our analysis focused on "the rationale of Chappell" and similar cases. Id. at 426. The analytical foundation of our holding would have been substantially disrupted had that language been removed. It is binding.

      .The Morrises attempt to distinguish many Texas cases, but our review convinces us that all support our holding. See, e.g., Newth v. Adjutant Gen.'s Dep’t of Texas, 883 S.W.2d 356, 360 (Tex. App.—Austin 1994, writ denied).

      . See 28 U.S.C. §§ 2671-2680.


source: Caselaw Access Project

author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

license: Public Domain

text:
    Rick Allen RHOADES, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
    No. 16-70021
    United States Court of Appeals, Fifth Circuit.
    Filed March 27, 2017

      David R. Dow, University of Houston Law Center, Houston, TX, Georgette P. Oden, Crawford & Cruz, Austin, TX, for Petitioner-Appellant.
    Jefferson David Clendenin, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee.
    Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

Rick Allen Rhoades murdered two men on September 12, 1991. Roughly one month later, while in custody for burglarizing a school, he confessed to the murders. A Harris County jury convicted him of capital murder and sentenced him to die. The Texas Court of Criminal Appeals (“CCA”) affirmed Rhoades’s conviction and sentence on direct appeal. He unsuccessfully petitioned a Texas state court for a writ of habeas corpus. Having exhausted his state remedies, Rhoades petitioned a federal district court for federal habeas corpus relief. The district court rejected all of Rhoades’s claims and declined to issue a certificate of appealability (“COA”). He now asks this court for a COA to appeal the district court’s resolution of his claims. We will grant a COA in part.

I.

“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal.” Federal law requires that he first obtain a COA. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” Until the applicant secures a COA, we may not rule on the merits of his case.

The COA inquiry ... is not coextensive with a merits analysis. At the COA stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” This threshold question should be decided without “full consideration of the factual or legal bases adduced in support of the claims.” “When a court of appeals sidesteps [the COA] process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.”

We limit our examination “ ‘to a threshold inquiry into the underlying merit of [the] claims,’ and ask ‘only if the District Court’s decision was debatable.’ ”

“Where the petitioner faces the death penalty, ‘any doubts as to whether a COA should issue must be resolved’ in the petitioner’s favor.” When the district court denied relief on procedural grounds, the petitioner seeking a COA must further show that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”

II.

Rhoades seeks a COA on five claims for federal habeas relief:

(1) that the convicting court unconstitutionally prevented him from presenting mitigating childhood photographs of himself to the jury during the sentencing phase;
(2) that the convicting court unconstitutionally permitted the jury to hear testimony about the possibility of release on furlough for capital defendants sentenced to life in prison;
(3) that the convicting court unconstitutionally prevented him' from informing the jurors about the parole implications of a life sentence;
(4) that his trial counsel provided constitutionally ineffective assistance by failing to object to (a) comments by the prosecutor supposedly implicating Rhoades’s right not to testify and (b) the guilt/innocence-phase discussion of Rhoades’s extraneous offenses; and
(5) that the State violated Batson when it exercised racially motivated peremptory strikes against two prospective jurors.

We will grant a COA on Rhoades’s claims 1, 2, and 5, but deny a COA on his claims 3 and 4.

1.

Rhoades’s first claim is that the convicting trial court unconstitutionally prevented him from presenting mitigating childhood photographs of himself to the jury during the sentencing phase of his trial. During sentencing, the defense’s theory was that Rhoades was generally nonviolent and would do well in a prison environment. Rhoades called his adoptive mother to testify about his troubled childhood. Prior to her testimony, the defense offered into evidence eleven photographs depicting a young Rhoades doing normal, happy childhood things (like fishing, holding a trophy, and going to a dance). The trial court excluded the photographs as irrelevant.

The CCA affirmed. It said that Rhoades had no constitutional right to introduce the photographs because they were not relevant to Rhoades’s moral blameworthiness for the murders, relying on Justice O’Connor’s concurring opinion in Franklin v. Lynaugh. , Judges Clinton and Overstreet dissented, pointing out that the relevant-to-moral-blameworthiness standard embraced by the CCA majority had never been adopted by the Supreme Court in a majority holding. They further observed that Skipper v. South Carolina seems to say that mitigating evidence can be relevant even when it does not touch on the defendant’s culpability for the crime committed. Those dissenting judges would have found that Rhoades had a constitutional right to introduce the photographs “even if the only purpose of their introduction was to solicit the mercy of the jury.”

Rhoades contends on federal habeas that the state court unreasonably applied the Supreme Court’s standard for what mitigating evidence capital defendants have a right to present to the jury. The district court analyzed the Supreme Court’s jurisprudence in this area and found that it permitted state courts “to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” According to the district court, the state court could have reasonably applied that standard to find the photographs irrelevant, and in any event the exclusion of the photographs did not affect Rhoades’s sentence, rendering any error harmless.

Persuaded that Rhoades has made a substantial showing of the denial of a constitutional right, we grant a COA on this claim. In particular, we note the challenge of determining what information is “relevant to the sentencing decision” within the meaning of the Supreme Court’s cases — a challenge that divided the Texas CCA on this issue. “When a state appellate court is divided on the merits of the constitutional question, issuance of a certificate of appealability should ordinarily be routine.” A COA is granted on Rhoades’s claim 1.

2.

Rhoades’s second claim is that the State presented false or misleading sentencing evidence. During the sentencing phase of Rhoades’s trial, the State put on testimony that Texas inmates convicted of capital murder but sentenced to life imprisonment are “eligible for furloughs” — the theory apparently being that the jury would be more likely to sentence Rhoades to death if it thought that sentencing him only to life imprisonment meant that he could take furloughs. Defense counsel objected, and the trial judge called for a bench conference to which the court reporter was evidently not invited; the record does not show what counsel said at the bench. At some point, the court reporter was summoned to the bench, whereupon defense counsel wrapped up his argument and the judge overruled any objection, noting “I don’t know where your objection is in there.”

Rhoades raised this point on his direct appeal to the CCA, but it found the objection not preserved because “he failed to object to the line of questioning with ample specificity to notify the trial court of his contention.” Because the CCA held any objection to the furlough testimony defaulted, it did not reach the merits. Rhoades nonetheless raised this claim on state habeas. The state habeas court recognized that the CCA’s procedural ruling barred Texas habeas review, but went on to rule, in the alternative, that “the applicant fails to show that such claims have merit.” On federal habeas, the district court avoided the procedural-bar issue, choosing instead to reject this claim on the merits.

Rhoades seeks a COA to challenge the district court’s, determination that his challenge to the furlough testimony lacks merit. Texas maintains that the claim is both procedurally barred and should be rejected on the merits. We grant a COA for both the merits and procedural issues.

Merits

Capital defendants have the constitutional right to reliable sentencing proceedings, which precludes the State from presenting false or misleading evidence to the sentencing jury. The merits issue is whether the state court’s factual finding that the furlough testimony was not false or misleading was “an unreasonable determination of the facts.” We presume that finding to be correct, and Rhoades bears the burden of rebutting it by clear and convincing evidence.

In support of this claim, Rhoades has offered evidence that, notwithstanding the nominal rule permitting Texas inmates serving a life sentence for capital murder to go on furlough, it was the defacto policy of the Texas Department of Criminal Justice (“TDCJ”) not even to consider such inmates for any type of furlough. This evidence includes the affidavit of a TDCJ officer saying as much and the fact that at the time of Rhoades’s trial, no Texas inmate serving a life sentence for capital murder had ever been granted a furlough of the kind that they are supposedly eligible for.

We find that Rhoades has made a substantial showing of the denial of a constitutional right and grant a COA on the merits of this claim. Telling the jury that its giving Rhoades a life sentence would qualify him for furloughs in order to make it more likely to give him a death sentence, when in reality he would never be considered for a furlough, raises serious questions about the reliability of Rhoades’s sentencing determination.

Procedural Bar

The district court opted to reach the merits of Rhoades’s furlough-testimony claim, but Texas insists that we should deny a COA because it is procedurally barred as a result of the CCA’s holding. The unique procedural posture of this claim gives rise to some ambiguity. The Texas CCA denied it solely on state procedural grounds, the contemporaneous-objection rule, and made no mention of the merits. Then the state habeas court acknowledged the CCA’s holding as a bar to state habeas review, but reached the merits anyway as an alternative holding.

“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”

State procedural bars are not immortal, however; they may expire because of later actions by state courts. If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.

Here, it appears that the Texas CCA created a procedural bar to federal habeas review of Rhoades’s furlough-testimony claim. However, it is not clear whether the state habeas court’s subsequently reaching the merits as an alternative holding “removes any bar to federal-court review that might otherwise have been available.” We grant a COA on this issue.

3.

Rhoades’s third claim is that the trial court unconstitutionally prevented him from informing the jury, if it sentenced him to life in prison instead of death, how long he would be imprisoned before becoming eligible for parole. In Texas at the time that Rhoades was convicted and sentenced, inmates convicted of capital murder but sentenced to life imprisonment would be eligible for parole after thirty-five years. Prior to jury selection, the State moved in limine to prevent Rhoades from informing the jury of that fact — the theory being that the jury might feel more comfortable imposing a life sentence if the defendant’s incarceration were guaranteed for thirty-five years. The trial court granted that motion. Rhoades’s jury never knew about the parole implications of choosing a life sentence over a death sentence.

On direct appeal, the Texas CCA affirmed based on .state precedent. Judge Overstreet dissented, penning a thorough analysis of why the CCA’s ruling misapplied federal law. The district court rejected this challenge on the merits. It noted that several capital habeas petitioners prior to Rhoades had made the same argument for the extension of Simmons to Texas’s pre-2005 parole eligibility scheme, but that the Fifth Circuit rejected them all.

The Supreme Court said in Simmons v. South Carolina that when a capital defendant sentenced to life in prison will never be eligible for parole under state law, the jury must be informed of that fact. Rhoades seeks to extend that reasoning to Texas’s parole scheme as it existed at the time of his conviction, which forbade parole for thirty-five years for capital defendants sentenced to life in prison. Rhoades’s argument is foreclosed by circuit precedent. In Kinnamon v. Scott, the habeas petitioner “assert[ed] constitutional error in his inability to argue to the jury in sentencing that if spared the death penalty [he] would be required to serve a minimum of 20 calendar years without good time before becoming eligible for parole.” He “rest[ed] this claim' upon Simmons v. South Carolina,” just as Rhoades does. We said “we would not extend Simmons beyond cases in which the sentencing alternative to death is life without parole.”

Because Rhoades’s claim 3 challenge is foreclosed, jurists of reason would not debate the district court’s resolution of it. We deny a COA on claim 3.

4.

Rhoades’s fourth claim is that he was denied effective assistance of trial counsel. To demonstrate a claim of ineffective assistance of trial counsel under Strickland v. Washington, the defendant must show both that counsel rendered deficient performance and that counsel’s actions resulted in actual prejudice. To demonstrate deficient performance, the defendant must show that, in light of the circumstances as they appeared at the time of the conduct, “counsel’s representation fell below an objective standard of reasonableness” as measured by “prevailing professional norms.” There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Trial counsel’s strategic decisions must be given a strong degree of deference. On habeas review, if there is any “reasonable argument that counsel satisfied Strickland’s deferential standard,” the state court’s denial must be upheld. Therefore, the question is whether jurists of reason would debate the district court’s resolution of this claim in light of these standards.

To demonstrate prejudice under Strickland, Rhoades must show that counsel’s deficient performance was “so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” This requires the showing of a reasonable probability that but for counsel’s deficiencies, the result of the proceeding would have been different. Rhoades alleges two instances of ineffectiveness: first, in failing to object to a portion of the prosecutor’s closing argument that he claims was an impermissible comment on his failure to testify; and second, in failing to object to other-bad-act evidence during the guilf/innocence phase of trial.

Comment on Failure to Testify

Rhoades did not testify at trial. During the prosecutor’s closing argument, she said:

When you talk about whether one intentionally killed, it doesn’t mean he had to enter that house with the intent to kill. In fact, I mean, why he went into the house? Why he killed those two young men? I know we would all love to know. Ask Mr. Stafford to tell you why he would do a thing like that.

“Mr. Stafford” was Rhoades’s trial defense counsel. Counsel did not object that the prosecutor’s comment was an impermissible reference to Rhoades’s failure to testify.

Rhoades argued in his state habeas application that his trial defense counsel’s failure to object that those comments were an impermissible reference to his failure to testify constituted ineffective assistance of trial counsel, but the state habeas court denied that claim. The district court found that the prosecutor’s comment was not a comment on Rhoades’s failure to testify, so Rhoades’s trial counsel was not ineffective for failing to have objected to it.

“[T]he Fifth Amendment ... forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” “[T]he test for determining whether the prosecutor’s remarks were constitutionally impermissible is: (1) whether the prosecutor’s manifest intent was to comment on the defendant’s silence or (2) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” Rhoades does not rely on the first prong of that test, opting instead to argue that the prosecutor’s “ask Mr. Stafford to tell you” comment would naturally and necessarily be construed by the jury as a comment on the defendant’s silence.

Rhoades has not made a substantial showing of the denial of a constitutional right on this portion of his ineffective-assistance-of-counsel claim. Counsel is not ineffective for failing to raise an unmerito-rious objection. The prosecutor’s argument explicitly referred to and invited defense counsel to respond to her challenge, not Rhoades himself. This rhetorical flourish does not foul, the Fifth Amendment. Rhoades has presented us with no color-able argument that the jury would naturally and necessarily construe the remark as a comment on Rhoades’s failure to testify. We deny a COA on this portion of Rhoades’s ineffective-assistance-of-counsel claim.

Other-Bad-Act Evidence

A month after Rhoades committed the murders for which he was convicted, he was arrested for burglarizing a school. While in custody for that offense, he confessed to the murders. During that confession, Rhoades also detailed other crimes and bad acts, such as other burglaries and auto thefts. Defense counsel did not object to the references to Rhoades’s burglarizing a school or prior burglaries and auto thefts. In fact, defense counsel specifically told the prosecutor and the trial court that he was taking a “let it all hang out approach,” with no intent to object to any of the prior acts.

Rhoades argued in his state habeas petition that failure to object to these other bad acts was ineffective assistance of counsel. Rhoades’s trial counsel submitted affidavits in which they explained that their primary trial strategy was to save Rhoades’s life.

Not only did we not object to this [other-bad-act] evidence, we told the jury of these facts in our opening statement. As previously stated, from the outset this was primarily a case to save [Rhoades’s] life. Our prominent focus was on punishment. As a part of the trial strategy, we decided to let the jury know of these very aggravating facts early on in an attempt to “de-sensitize” them. We feared that if this information was heard for the first time at punishment, that the jury would find it difficult to give proper weight to all of our punishment evidence and would be so incensed that the death penalty would be nearly automatic. We had put substantial time and energy into developing evidence of [Rhoades’s] tortured background, his medical, brain abnormality and the fact that he was nonviolent in prison. We felt that if the jury learned of his prior arrest and parole immediately prior to our evidence, that this mitigation evidence would fall on deaf ears. In retrospect, I stand by that decision.

Under Texas Rule of Evidence 404(b), “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” The State here admits that the other-bad-act evidence was perhaps objectionable under TRE 404(b), but points out the reasonableness of counsel’s trial strategy not to object to the evidence and allow the jury to hear it early.

Rhoades has not made a substantial showing of the denial of a constitutional right on this portion of his ineffective-assistance-of-counsel claim. Our federal habeas review of a state court’s denial of an ineffective-assistance-of-eoun-sel claim is “doubly deferential” because we take a highly deferential look at counsel’s performance through the deferential lens of § 2254(d). “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”

Counsel ... may reasonably decide to focus on the trial’s penalty phase, at which time counsel’s mission is to persuade the trier that his client’s life should be spared. Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course.

Rhoades presents us with no colorable argument that the state court’s finding defense counsel’s trial strategy reasonable was unreasonable. We also deny a COA on this portion of Rhoades’s ineffeetive-assis-tance-of-counsel claim.

5.

Rhoades’s fifth and final claim is that the prosecutor violated Batson by using peremptory strikes against two black jurors. Rhoades himself is white, but the defendant need- not be in the same protected class as stricken jurors to raise Batson, Under the rule established by Batson v. Kentucky, peremptory strikes may not be racially motivated. Proof of a Batson violation proceeds in three steps: first, the defendant must make a prima facie case of racial discrimination in connection with the prosecutor’s use of a peremptory strike. Then the burden shifts to the State to come forward with a race-neutral explanation for exercising the strike. The prosecutor’s explanation “need not rise to the level justifying exercise of a challenge for cause.” Finally, the burden shifts back to the defendant to “establish[] purposeful discrimination.”

At the third step, the defendant may rely on “all relevant circumstances” to show purposeful discrimination. “[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike. At this stage, ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’ ”

A state court’s Batson ruling is a finding of fact that we afford a presumption of correctness unless the petitioner rebuts it with clear and convincing evidence. Therefore, the question is whether jurists of reason would debate the district court’s resolution of this claim in light of these standards. Rhoades challenges his prosecutor’s use of peremptory strikes with respect to two potential jurors: Ber-niece Holiday and Gregory Randle.

Bemiece Holiday

One of Rhoades’s prospective jurors was Berniece Holiday, a black woman. The prosecutor exercised one of her peremptory strikes to dismiss Ms. Holiday, then Rhoades immediately objected under Bat-son. The trial court found that Rhoades could not establish a prima facie case of racial selection, but ordered the State to offer race-neutral reasons for striking the prospective juror anyway “[o]ut of an abundance of caution.”

The prosecutor offered several race-neutral reasons for using her strike. As summarized by the Texas CCA on direct appeal:

(a) Holiday “dozed off’ during the State’s group voir dire examination; (b) Holiday’s answers were very succinct, in a way which demonstrated a lack of candor; (c) Holiday only answered three of seventeen' questions on a particular page of her juror questionnaire; (d) Holiday’s facial expressions led the prosecutor to believe that she was saying what she believed the prosecutor wanted to hear; (e) Holiday was an elementary school teacher and might identify too closely with evidence of [Rhoades]’s difficult childhood; (f) Holiday indicated, with a tone of pride, that, while previously serving on a jury, she “set free” the defendant; (g) Holiday had a first cousin who was in prison.

After giving the defense a .chance to respond, the trial court denied the Batson challenge. The Texas CCA affirmed, saying that “Appellant’s showing of purposeful discrimination was minimal[,] [t]he State’s race-neutral explanations were not whimsical, ... and the record does not reflect that the State demonstrate a disparate pattern of strikes against any suspect class.” The district court ruled: “Given the numerous race-neutral reasons proffered by the State, Rhoades’ weak showing of disparate questioning, and the absence of any meaningful evidence of discriminatory intent, the Court finds that Rhoades has not met his AEDPA burden with regard to Ms. Holiday.”

We are persuaded that Rhoades has made a substantial showing of the denial of a constitutional right in connection with the strike of this prospective juror. Rhoades cites significant evidence that Ms: Holiday was a strong juror for the prosecution, but that she was treated differently than the white jurors questioned before her. She said that she was “strongly in favor of the death penalty.” Rhoades points out that the prosecutor questioned her more extensively than the previous, white jurors. He also notes that the prosecutor’s proffered race-neutral reasons for striking Ms. Holiday are unsupported by the record. We find this claim at least debatable, and we grant a COA.

Gregory Randle

The prosecutor also exercised one of her peremptory strikes against Gregory Ran-dle, a black man, and Rhoades again objected under Batson. The trial court asked the prosecutor to state her race-neutral reasons for exercising the strike, and she did so. As summarized by the Texas CCA on direct appeal:

(a) Randle had a brother in prison, and although Randle had visited him recently, Randle professed that he did not know what crime his brother committed. The prosecutor professed that she was concerned Randle was being disingenuous, and down-playing the effect his relationship with his brother would have on him; (b) Randle vacillated on the kind of evidence he would require to find future danger. Although this vacillation was not legally sufficient to subject Ran-dle to a challenge for cause, he nevertheless occasionally articulated that he would prefer evidence of past violent behavior to find future danger (the State had no evidence of past violent behavior); (c) Randle indicated during voir dire that he thought the death penalty was wrong, although he conceded that it might be necessary for some crimes.

The trial court found that the prosecutor had struck the prospective juror for race-neutral reasons. The Texas CCA affirmed. The federal district court concluded that “Rhoades has not shown that the state courts were unreasonable in their assessment of the State’s peremptory strike against Gregory Randle.” We are persuaded that Rhoades has made a substantial showing of the denial of a constitutional right. Like Ms. Holiday, Mr. Randle articulated a pro-prosecution perspective. He said he would not insist on evidence of motive to impose a death sentence. The prosecutor cited, as one of her race-neutral reasons for striking Mr. Randle, that he had a brother in prison; but other white jurors who went unchallenged by the State also had family members in prison. Rhoades also points out that Mr. Randle never actually made one of the statements that the prosecutor cited as a reason for striking him. Taken together, we find this evidence to be a substantial showing of the denial of a constitutional right under Bat-son. We grant a COA.

III.

In sum, we grant a COA on Rhoades’s claims 1, 2, and 5 for habeas relief involving the exclusion of mitigating photographs, the admission of furlough testimony, and two Batson challenges. We deny a COA on Rhoades’s claims 3 and 4 involving ineligibility for parole and ineffective assistance of counsel.

      . Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996).

      . Ex parte Rhoades, No. WR-78,124-01, 2014 WL 5422197 (Tex. Crim. App. Oct. 1, 2014).

      . Buck v. Davis, - U.S. -, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017).

      . 28 U.S.C. § 2253(c)(1).

      . Id. § 2253(c)(2).

      . Buck, 137 S.Ct. at 773 (citing Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

      . Id. (citations omitted).

      . Id. (quoting Miller-El, 537 U.S. at 327, 348, 123 S.Ct. 1029).

      . Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015) (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004)).

      . Gonzalez v. Thaler, 565 U.S. 134, 140-41, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

      . Rhoades, 934 S.W.2d at 125-26.

      . Id. at 126 (quoting 487 U.S. 164, 184, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O'Con-nor, J., concurring in the judgment)).

      . Id. at 130-31 (Clinton, J., dissenting).

      . Id. at 131 (citing 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)).

      . Id.

      . Lockett v. Ohio, 438 U.S. 586, 604 n.12, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

      . Kansas v. Marsh, 548 U.S. 163, 175, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) ("In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here.”).

      . Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011).

      . Rhoades, 934 S.W.2d at 127.

      . Id.

      . See California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) ("[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.”).

      . See Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) ("[W]e conclude that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been [misled.]”).

      . 28 U.S.C. § 2254(d)(2).

      . Id. § 2254(e)(1).

      . Rhoades, 934 S.W.2d at 127.

      . Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)).

      . Id. (citing Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)).

      . See Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999) (stating that Texas’s contemporaneous-objection rule is an "independent and adequate state-law procedural ground sufficient to bar federal court habeas review of federal claims” (quoting Amos v. Scott, 61 F.3d 333, 345 (5th Cir. 1995))).

      . See Ylst, 501.U.S. at 801, 111 S.Ct. 2590.

      . Rhoades, 934 S.W.2d at 128.

      . Id. (citing Smith v. State, 898 S.W.2d 838 (Tex. Crim. App. 1995) and Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995)).

      . Id. at 131-44 (Overstreet, J., dissenting).

      . In 2005, Texas eliminated the possibility of parole for capital defendants sentenced to life in prison. Tex. Code. Crim. P. art. 37.071 § 2(g).

      . 512 U.S. 154, 162-64, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

      . 40 F.3d 731, 733 (5th Cir. 1994).

      . See id.

      . Kinnamon, 40 F.3d at 733. See also Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir. 1995).

      . 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Id. at 687-88, 104 S.Ct. 2052.

      . Id. at 689, 104 S.Ct. 2052.

      . Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993).

      . Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

      . Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

      . Id. at 694, 104 S.Ct. 2052.

      . Defense counsel did object that some of the statements were unsupported by the evidence, but that objection was overruled.

      . Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

      . United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010) (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)).

      . Rivera v. Collins, 934 F.2d 658, 661 (5th Cir. 1991).

      . Cullen v. Piriholster, 563 U.S. 170, 190, 131 S.Ct 1388, 179 L.Ed.2d 557 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct 1411, 173 L.Ed.2d 251 (2009)).

      . Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

      . Florida v. Nixon, 543 U.S. 175, 191, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

      . Powers v. Ohio, 499 U.S. 400, 410-16, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

      . 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Id. at 96-97, 106 S.Ct. 1712

      . Id. at 97, 106 S.Ct. 1712. When the state trial court called on the government to provide race-neutral justifications, we assume that the defendant satisfied his or her initial burden. United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998).

      . Batson, 476 U.S. at 97, 106 S.Ct. 1712.

      . Id. at 98, 106 S.Ct. 1712.

      . Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. 1712).

        . Miller-El v. Cockrell, 537 U.S. 322, 338-39, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

      . 28 U.S.C. § 2254(e)(1); Hernandez v. New York, 500 U.S. 352, 366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

      . Rhoades, 934 S.W.2d at 124.

      . Id.

      . Id. at 124-25.

      . Id. at 125.


text:
    BWP MEDIA USA, INCORPORATED, doing business as Pacific Coast News; National Photo Group, L.L.C., Plaintiffs-Appellants v. T & S SOFTWARE ASSOCIATES, INCORPORATED, Defendant-Appellee
    No. 16-10510
    United States Court of Appeals, Fifth Circuit.
    Filed March 27, 2017

      Craig B. Sanders, Sanders Law, P.L.L.C., Garden City, NY, for Plaintiffs-Appellants.
    Joseph F. Cleveland, Jr., Brackett & Ellis, P.C., Fort Worth, TX, for Defendant-Appellee.

      Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   LESLIE H. SOUTHWICK, Circuit Judge:

This appeal is about whether “volitional conduct” is required to establish a claim for direct copyright infringement. Defendant T & S Software Associates, an internet service provider, hosted an internet forum on which third-party users posted images that infringed copyrights owned by plaintiffs BWP Media USA and National Photo Group. The plaintiffs sued T & S for direct and secondary copyright infringement. The district court granted summary judgment in favor of T & S. The plaintiffs appeal the district court’s direct-infringement holding. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

T & S hosts a website that includes a public forum called “HairTalk.” Users of the forum may post content, share comments, ask questions, and engage in online interactions with other users on a range of topics including hair, beauty, and celebrities. Use of HairTalk is governed by terms of service providing that “any photo containing ... celebrities ... or any copyrighted image (unless you own the copyright) is not permitted.” Every time someone logs on to HairTalk, the user must agree to these terms. Aso, each page of the website includes a “contact us” link, which allows anyone to contact the website to report objectionable content. During the relevant time period, T & S did not have an agent designated to receive notices of content that should be removed as required to qualify for the statutory safe harbor of the Digital Millennium Copyright Act (“DMCA”). The specific section on the protections arising from naming an agent is 17 U.S.C. § 512(c).

Plaintiffs BWP Media USA and National Photo Group (collectively, “BWP”) are registered owners of various celebrity photographs. Three photographs owned by BWP were posted by third-party users on HairTalk without BWP’s permission. They depicted Ke$ha, Julianne Hough, and Ashlee Simpson. BWP sued for copyright infringement. The suit claimed that T & S was liable for its users’ infringement because it failed to designate a registered agent under Section 512. T & S learned of the photographs upon commencement of this suit and promptly removed them. The district court granted summary judgment in favor of T & S as to both direct and secondary infringement. BWP appeals the district court’s judgment only as to T & S’s direct-infringement liability.

DISCUSSION

We review a grant of summary judgment de novo, applying the same standard as the district court. Ibe v. Jones, 836 F.3d 516, 526 (5th Cir. 2016). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). .Here, there is no factual dispute; the case turns on the proper interpretation of the Copyright Act. We review the district court’s interpretation of the Act de novo. Comput. Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 399-400 (5th Cir. 2000).

The determinative issue on appeal is whether volitional conduct is required to prove a claim of direct infringement. Our answer starts with the text of the Copyright Act. The Act gives a copyright owner “the exclusive right[]” to “reproduce the copyrighted work” and “display” it “publicly.” 17 U.S.C. § 106(1), (5). “Anyone who violates any of the exclusive rights of the copyright owner as provided by section[] 106 ... is an infringer....” Id. § 501(a). Thus, a plaintiff generally must prove two elements to establish infringement: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

When there is a question as to who infringed, the analysis can turn on whether the type of infringement is direct or secondary. Direct liability is imposed on those who “trespass[ ] into [the copyright owner’s] exclusive domain by using or authorizing the use of the copyrighted work.... ” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Secondary infringement involves liability for actions of third parties. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). Only direct infringement is at issue on this appeal.

In direct-infringement cases, courts have trended toward requiring volitional conduct. This requirement first came to the fore in 1995 when a California district court held that an ISP serving as a passive conduit for copyrighted material was not liable for direct infringement. See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., 907 F.Supp. 1361 (N.D. Cal. 1995). There, a user posted copyrighted works to an online bulletin board. Id. at 1365. The owners of the copyrighted works, seeking compensation for infringement, sued the operator of the -bulletin-board service and the ISP that the operator used to access the internet. Id. The court reasoned that “[although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” Id. at 1370.

Accordingly, the court rejected the plaintiffs’ argument that the ISP stored and thereby copied the copyrighted works: “Where the infringing subscriber is clearly directly liable for the same act, it [would] not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement [was] nothing more than setting up and operating a system that is necessary for the functioning of the Internet.” Id. at 1372. The court did “not find workable a theory” that would hold online parties, such as ISPs, liable “for activities that cannot reasonably be deterred.” Id. Thus, because the Net-com plaintiffs could not show that either the ISP or bulletin-board service was actively involved in the infringement, the court held neither was liable as a direct infringer. Id. at 1372-73,1381-82.

Other courts followed. The Fourth Circuit was an early adopter of Netcom and the volitional-conduct requirement. CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004). There, the copyright owner sued an ISP, LoopNet, for direct infringement after “CoStar’s copyrighted photographs were posted by LoopNet’s subscribers on LoopNet’s website.” Id. at 546. Like the copyright owners in Netcom, CoStar argued its “photographs were copied into LoopNet’s computer system,” and so LoopNet was strictly liable, even though LoopNet’s actions were passive. Id. The court disagreed. It held instead that because LoopNet, as an ISP, was “simply the owner and manager of a system used by others who [were] violating CoStar’s copyrights and [was] not an actual duplicator itself, it [was] not directly liable for copyright infringement.” Id.

The Fourth Circuit also rejected the argument that “any immunity for the passive conduct of an ISP such as LoopNet must come from the safe harbor immunity provided by the Digital Millennium Copyright Act (‘DMCA’), if at all, because the DMCA codified and supplanted the Net-com holding.” Id. at 548. Netcom, the court concluded, “grounded its ruling principally on its interpretation of § 106 of the Copyright Act as implying a requirement of ‘volition or causation’ by the purported infringer,” not only on pragmatic concerns or a gap in the law. Id. at 549. The court commended Netcom’s approach in part because the Act “requires conduct by a person who causes in some meaningful way an infringement.” Id. Thus, “to establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies.” Id. at 550. Instead, “[tjhere must be actual infringing conduct with a nexus sufficiently close and causal to the illegal-copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.” Id.

In a developing line of authority, every circuit to address this issue has adopted some version of Netcom’s reasoning and the volitional-conduct requirement. See, e.g., Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666-67 (9th Cir. 2017); Leonard v. Stemtech Int’l Inc, 834 F.3d 376, 387 (3d Cir. 2016); Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 131 (2d Cir. 2008).

BWP argues we should not step into this line because the Supreme Court’s 2014 decision in Aereo rejected both the Netcom line of cases and the volitional-conduct requirement generally. See American Broadcasting Cos. v. Aereo, Inc., — U.S. -, 134 S.Ct. 2498, 189 L.Ed.2d 476 (2014). In that case, Aereo was sued for allegedly infringing the petitioners’ exclusive right to perform their copyrighted works publicly under Section 106(4) “by selling its subscribers a technologically complex service that allow[ed] them to watch television programs over the Internet at about the same time as the programs [were] broadcast over the air.” Id. at 2503. The first issue was whether Aereo “perform[ed].” Id. at 2504. The Supreme Court compared Aereo’s service to the community-antenna-television (“CATV”) systems that Congress had meant to bring within the Act’s scope via a set of 1976 amendments. Id. Although it acknowledged that Aereo’s subscribers selected the content to be performed, the Court concluded that “[gjiven Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference .... ” Id. at 2507. Then, after also concluding that Aereo performed “publicly,” the Court held Aereo was liable for infringement. Id. at 2508. The Court never addressed whether Aereo’s conduct was volitional, resting its holding instead on the similarities between the CATV systems and Aereo’s system.

We find the dissent to be helpful in understanding the decision. Justice Scalia concluded that Aereo could not be held directly liable because, among other things, it did not engage in volitional conduct. Id. at 2512 (Scalia, J., dissenting). To him, whether a defendant may be held directly liable “[mjost of the time ... will come down to who selects the copyrighted content: the defendant or its customers.” Id. at 2513. He then offered a comparison:

A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-old’s drawings— a perfectly lawful thing to do — while another might duplicate a famous artist’s copyrighted photographs — a use clearly prohibited by § 106(1). Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customer’s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.
Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, ‘thousands of ... movies and TV episodes’ carefully curated by Netflix are ‘available to watch instantly.’ That selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.

Id. at 2513 (alteration and citation omitted).

Justice Scalia concluded that Aereo was neither one of his examples; instead, it was like “a copy shop that provides its patrons with a library card,” providing both the technology and indirect access to the content. Id. at 2514. Because such a shop does not itself choose the content, it does not act with the requisite volition and thereby does not directly infringe. Id. Neither, he concluded, did Aereo. Id.

The Court rejected this argument primarily because Aereo’s service was not materially distinguishable from the CATV systems. Id. at 2507. The Court did not, though, explicitly reject Justice Scalia’s formulation of the volitional-conduct requirement. Indeed, it noted that “[i]n other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act.” Id. The systems used by Aereo and the CATVs were just too similar for such factors to matter in that case.

BWP argues that when the majority rejected Justice Scalia’s dissenting copy-shop argument as “mak[ing] too much out of too little,” id. at 2507, it at least eroded the volitional-conduct requirement. We disagree. As the Ninth Circuit recently concluded, Aereo “did not expressly address the volitional-conduct requirement for direct liability under the Copyright Act, nor did it directly dispute or comment on Justice Scalia’s explanation of the doctrine.” Giganews, 847 F.8d at 667. Thus, “it would be folly to presume that Aereo categorically jettisoned [the volitional-conduct requirement] by implication,” both because Aereo itself distinguished between engaging in activity and merely supplying equipment and because it limited its holding to the technology at issue. Id. (quotation marks omitted). We likewise conclude that “[t]he volitional-conduct requirement is consistent with the Aereo majority opinion. ...” See id.

Before leaving Aereo, we also distinguish its facts. When a copy-shop owner makes a photocopier available to customers, but a customer brings in the copyrighted work and makes the copy himself, the infringing conduct is attributable only to the customer. That is because the copy-shop owner does not reproduce the work but “merely supplies equipment that allows others to do so.” See Aereo, 134 S.Ct. at 2504. Aereo did not just provide equipment. It also provided access and the means to transmit the infringing material. See id. at 2506-07.

The facts here are much closer to those in the Netcom line of cases than those in Aereo. Although Aereo and T & S both provided a service that others could use to infringe, only Aereo played an active role in the infringement. That role was to route infringing content to its users. True, its users would request the content, but they did not merely utilize Aereo’s service to store infringing content they obtained elsewhere. Aereo, not its users, provided the means to obtain and transmit copyrighted performances. Aereo’s involvement, in other words, was more than passive. Cf. Aereo, 134 S.Ct. at 2507.

The same cannot be said of T & S’s conduct. T & S hosts the forum on which infringing content was posted, but its connection to the infringement ends there. The users posted the infringing content. Unlike Aereo, T & S did not provide them access to that content. Holding T & S directly liable thus raises the same concern as it did in Netcom: “it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet.” See Netcom, 907 F.Supp. at 1372. Like Netcom and unlike Aereo, T & S and the infringing content are not linked by volitional conduct. It cannot be said that T & S’s conduct “cause[d] in some meaningful way an infringement.” See CoStar, 373 F.3d at 549.

BWP also argues that because Netcom predated the DMCA, its analysis is no longer good law. The particular argument is that the safe-harbor rules of Section 512(c) created the exclusive method of protecting an arguably innocent ISP: if a user directs the storage of copyrighted material on a service provider’s system, the ISP has no liability if (1) the provider lacks knowledge of the infringement, (2) does not receive. direct financial benefits from the storage, (3) “acts expeditiously to remove, or disable access to,” the infringing material once learning of it, and (4) “has designated an agent to receive notifications of claimed infringement[.]’’ 17 U.S.C. § 512(c).

T & S does not qualify for Section 512(c)’s safe harbor, as it never designated an agent. To BWP, adopting the volitional-conduct requirement would render Section 512(c)’s safe harbor meaningless. BWP also argues that adopting the requirement would disincentivize DMCA compliance by benefitting those ISPs that choose not to satisfy Section 512(c)’s requirements.

T & S points out that Section 512 includes a caveat: “The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.” See § 512(í). T & S argues that this means the DMCA does not abrogate the volitional-conduct requirement.

The Fourth Circuit addressed this argument in CoStar. It too faced the argument that because “Congress ‘codified’ Netcom in the DMCA ... it can only be to the DMCA that we look for enforcement of those principles.” CoStar, 373 F.3d at 552 (alterations in original). The court disagreed, judging that CoStar’s argument was “belied by the plain language of the DMCA itself’:

Even though the DMCA was designed to provide ISPs with a safe harbor from copyright liability, nothing in the language of § 512 indicates that the limitation on liability described therein is exclusive. Indeed, [Section 512© ] provides explicitly that the DMCA is not exclusive .... Given that the statute declares its intent not to “bear adversely upon” any of the ISP’s defenses under law, including the defense that the plaintiff has not made out a prima facie case for infringement, it is difficult to argue, as CoStar does, that the statute in fact precludes ISPs from relying on an entire strain of case law holding that direct infringement must involve conduct having a volitional or causal aspect.

Id. The court also referred to the canon of construction for abrogation of the common law: “When Congress codifies a common-law principle, the common law remains not only good law, but a valuable touchstone for interpreting the statute, unless Congress explicitly states that it intends to supplant the common law.” Id. at 553.

So the Fourth Circuit held that the “DMCA’s safe harbor for ISPs [is] a floor, not a ceiling, of protection.” Id. at 555. Rather than altering the volitional-conduct requirement, “[t]he DMCA has merely added a second step to assessing infringement liability for [ISPs], after it is determined whether they are infringers in the first place under the preexisting Copyright Act.” Id. In other words, whether there is volitional conduct is the first step of establishing infringement under Sections 106 and 501. See id.. Only if the plaintiff shows such infringement are courts to analyze whether the ISP nonetheless falls within Section 512’s safe harbor. See id

We agree with the Fourth Circuit’s analysis on this point. BWP also argues that retaining the volitional-conduct requirement diminishes Section 512(e)’s usefulness in direct-infringement cases. That may be, but it does not in secondary-infringement cases. See, e.g., Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146, 1175 (9th Cir. 2007). Textual meaning and incentives to comply both remain.

* * *

We adopt the volitional-conduct requirement in direct-eopyright-infringement cases. BWP does not contend that T & S did, in fact, engage in such conduct. Thus, the district court properly granted summary judgment in favor of T & S. AFFIRMED.

      . We recognize, as other courts have, that “the word 'volition' in this context does not really mean an 'act of willing or choosing' or an ‘act of deciding’.... ” Giganews, 847 F.3d at 666. One court decided the word "stands for the unremarkable proposition that proximate causation historically underlines copyright infringement liability no less than other torts.” Id. (quotation marks omitted). It also has been held that "volition requires a relationship between the system owner and the copyrighted work that will permit the owner to prevent infringement of the work without the necessity of monitoring the behavior of third parties.” Robert C. Denicola, Volition and Copyright Infringement, 37 Cardozo L. Rev. 1259, 1276 (2016). At the very least, the Act "requires conduct by a person who causes in some meaningful way an infringement.” CoStar, 373 F.3d at 549 (emphasis omitted).

      . Aereo's system allowed a subscriber to select a show from Aereo’s website, after which Aereo's system, consisting of thousands of antennas in a centralized warehouse, responded as follows. First, a server tuned an antenna, dedicated to one subscriber alone, to the broadcast carrying the selected show. Next, a transcoder translated the signals received into data that could be transmitted over the internet. A server would save that data into a subscriber-specific folder and then begin streaming the show onto the subscriber's screen once a few seconds of programming had been saved. This continued until the subscriber watched the entire show. See Aereo, 134 S.Ct. at 2503.

      .The CATV provider used a system of antennas on hills to "amplif[y] and modulated [copyrighted local TV] signals in order to improve their strength and efficiently transmit them to [the home TV sets of its] subscribers.” Aereo, 134 S.Ct. at 2504. The subscriber could choose any program he wanted to watch by turning the knob on his TV set. In two prior cases, the Court had held CATV providers were not infringers, but Congress amended the Copyright Act in 1976 "in large part to reject the Court’s holdings in” those cases. Id. at 2505. Congress clarified that "both the broadcaster and the viewer of a television program 'perform,' because they both show the program’s images and make audible the program's sounds.” Id. at 2506 (emphasis omitted).

      . Accord Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 n.4 (9th Cir. 2007) ("[T]he DMCA does not change copyright law; rather, ‘Congress provided that the DMCA’s limitations of liability apply if the provider is found to be liable under existing principles of law.' ” (alteration omitted) (quoting Ellison v. Robertson, 357 F.3d 1072, 1077 (9th Cir. 2004))); BWP Media USA Inc. v. Polyvore, Inc., No. 13-CV-7867(RA), 2016 WL 3926450, at *6 (S.D.N.Y. July 15, 2016) ("In light of this unambiguous statutory language and clear legislative history, the Court rejects Plaintiffs’ argument that, in passing the DMCA, Congress intended to subject ISPs to different standards of copyright liability than non-ISPs.”).