author: BENAVIDES, Circuit Judge:

text:
    TEXAS INDEPENDENT PARTY, et al., Plaintiffs-Appellants, v. Ronald KIRK, Defendant-Appellee.
    No. 95-50172.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1996.

      Gary SinawsH, New York City, for plaintiffs-appellants.
    Dan Morales, Attorney General, Office of the Attorney General, for the State of Texas, Austin, TX, Blake O. Brodersen, Assistant Attorney General, Office of the Attorney General of Texas, Austin, TX, for defendant-appellee.
    Before JOLLY, JONES and BENAVIDES, Circuit Judges.
   BENAVIDES, Circuit Judge:

In this appeal, we resolve a constitutional attack on certain provisions of the Texas Election Code. A newly-formed political party, several of its officers and candidates, and two independent candidates contend that the Election Code deadlines for filing a declaration of intent to run for office, holding nominating conventions, and submitting petitions are simply too early in violation of the First and Fourteenth Amendments. Additionally, the independent candidates challenge the requirement that voter registration numbers must be included on their nominating petitions. Because we conclude that the challenged deadlines are reasonable, nondis-eriminatory regulations, justified by legitimate state interests, we principally affirm the judgment of the district court. However, we hold that the voter registration number requirement is unduly burdensome and rer verse the judgment with respect to that single provision.

TEXAS ELECTORAL SCHEME

Texas has a detailed statutory scheme for the regulation of political parties as it relates to the nomination of candidates for the general election ballot. The basic framework provides four nomination methods. Major political parties, those polling 20% or more of the total votes cast in the most recent gubernatorial general election, must nominate candidates through a statewide primary election. Tex.Elec.Code Ann. § 172.001 (West 1986). Political parties polling at least 2% but less than 20% in the previous gubernatorial election may choose to nominate candidates through either a primary election or through nominating conventions. Id. § 172.002(a). Those minor political parties with less than 2% support in the past gubernatorial election or those that did not field a gubernatorial candidate in such election must nominate candidates through a process of precinct, county, and state conventions. Id. § 181.003. If sufficient participation is not evidenced at the conventions, the circulation of petitions is also required. Id. § 181.005. Finally, unaffiliated or independent candidates qualify by application and petition signed by a specified percentage of the vote cast for governor in the relevant electoral district. Id. §§ 142.002, .007. This statutory scheme is constitutional. See American Party of Texas v. White, 415 U.S. 767, 780-81, 94 S.Ct. 1296, 1305-06, 39 L.Ed.2d 744 (1974).

This detailed nominating process including primary elections, nominating conventions, applications, and petitions naturally involves a series of deadlines. These deadlines emanate from the date of the primary election. In 1986, the Texas legislature, motivated by the desire to participate in the nationwide “Super Tuesday!’ ' presidential primary, moved the date of the primary election from the first Saturday in May to the first Tuesday after the first Monday in March. When the primary election was moved up to “Super Tuesday,” a corresponding shift in a variety of other deadlines occurred. These earlier deadlines are at the core of this controversy.

To be entitled to a place on the general election ballot, all candidates are required to file a declaration of intent to run for office. The declaration is basically a simple matter that requires only the candidate’s name, address, and office sought. Tex.Elec.Code Ann. § 142.002 (West 1986). In general, this declaration of intent to run for office must be filed by January 2nd of the election year. Id. §§ 142.002(b), 172.023(a), 181.0041, 181.033(a) (West 1986 & Supp.1996). In 1994, however, the deadline fell on a weekend and was therefore extended to January 3rd making the declaration due approximately two months prior to the March 8th primary. See id. § 1.006 (West 1986) (effect of weekend or holiday).

In addition to the deadline for the declaration of intent, the Texas Election Code establishes a timetable for the minor party nominating conventions. The timing of the precinct, county, and district nominating conventions is linked to the primary election date. The precinct convention is held on the same day as the primary election and is for the sole purpose of selecting delegates to the county or district convention. Id. § 181.061(c) (West Supp.1996). The county convention is held on the first Saturday following the primary election, and is for the selection of nominees for county offices. Id. §§ 181.061(c), 182.005. The district convention is held on the second Saturday following the primary election, and is for the purpose of selecting nominees for multi-county offices. Id. § 181.061(b). The state convention is held on the second Saturday in June. Id. § 181.061(a) (West 1986). Pursuant to this statutory scheme, in 1994 the primary election and precinct conventions were to be held on March 8th; county and district conventions were to be held on March 12th and 19th respectively; state conventions were to be held on June 11th.

A minor political party required to nominate by the convention process and independent candidates must also qualify to appear on the ballot by showing sufficient support. In order to qualify, the political party must file with the Secretary of State a list of precinct convention participants indicating a total number of participants equal to one percent of the total votes received by all candidates for governor in the most recent general election. Id. § 181.005(a). In 1994, this threshold number was 38,927. However, an inadequate number of precinct convention participants does not preclude a minor party’s participation in the general election. If the number of precinct participants fails to meet the threshold, the party can supplement the list with petitions. Under the Election Code, the party has seventy-five days from the date of the precinct convention to complete the petitioning. Id. In 1994, this deadline fell on May 23rd.

Similarly, independent candidates for statewide office seeking a place on the general election ballot must file a petition with the number of signatures equal to one percent of the total vote received by all candidates for governor in the last election. Id. § 142.007(1). Independent candidates for district, county, or precinct office must file a petition with the lesser of 500 or five percent of the total vote received in the district, county, or precinct, as applicable, by all candidates for governor in the last election. Id. § 142.007(2). An independent candidate has thirty days from the date of the primary runoff election to complete the petitioning. Id. § 142.006 (West Supp.1996). In 1994, this deadline fell on May 12,1994.

In order to validly support a petition, a signer of a petition must not have voted in the general or runoff primary election. Id. § 142.009 (West 1986). The Texas Election Code also requires that the petition must include the signer’s name, address, and voter registration number. Id. § 141.063(2).

THE CONTROVERSY

The plaintiffs in this case are the newly-formed Texas Independent Party, several of its officers, eight candidates who sought the party’s nomination for public office in the general election, and two independent candidates for public office in the general election (collectively, “Appellants”). On March 10, 1994, Appellants sued the Secretary of State seeking declaratory and injunctive relief from the Election Code deadlines contending that they unduly burdened their First and Fourteenth Amendment rights. The essence of Appellants’ constitutional challenge is that these deadlines are simply too early.

Specifically, Appellants challenge the January 2nd deadline for filing declarations of intent. Appellants also challenge the specific dates required for minor-party precinct, county, district, and state conventions. Additionally, Appellants challenge the dates upon which nominating petitions for minor parties and independent candidates must be submitted to the Secretary of State. Finally, Appellants raise one challenge to the substance of the electoral scheme, i.e., the requirement of voter registration numbers for signers of independent candidate petitions.

The district court referred this case to the magistrate judge. Both sides filed motions for summary judgment. The magistrate judge recommended granting the defendant Secretary of State’s motion and denying the plaintiffs’ motion. The basis for the magistrate judge’s recommendation was that the challenged deadlines were reasonable, non-diseriminatory restrictions that were supported by the State’s legitimate regulatory interests. On January 25, 1995, the district court approved and adopted the recommendation. This appeal ensued.

ANDERSON/BURDICK METHODOLOGY

Voting is of the most fundamental significance in our constitutional system. Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992). However, the right to vote in any manner and the right to associate for political purposes through the ballot are not absolute. Id. As a practical matter, there must be substantial regulation of elections to ensure fairness, honesty, and order. Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983). These necessary regulations invariably impose some burdens upon voters. Consequently, every voting regulation is not subject to strict scrutiny requiring that the regulation be narrowly tailored to advance a compelling state interest. Burdick, 504 U.S. at 433, 112 S.Ct. at 2063. Rather, the Supreme Court has clearly articulated that a flexible standard applies. This methodology, forged in Anderson and refined in Burdick guides us today.

A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected' by the First and Fourteenth Amendments against the precise interests put forward by the State as justifications for the burden imposed by its rule. Id. at 434, 112 S.Ct. at 2063-64; Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. The rigorousness of the inquiry into the propriety of the state election law depends upon the extent to which the challenged regulation burdens First and Fourteenth Amendment rights. Burdick, 504 U.S. at 434, 112 S.Ct. at 2063-64. When those rights are subjected to severe restriction, the regulation must be narrowly tailored to advance a compelling state interest. Id. But when a state election law imposes only reasonable, nondiseriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions. Id.; Anderson, 460 U.S. at 788, 103 S.Ct. at 1569-70.

The Supreme Court’s application of this rubric in Anderson and Burdick illustrates these principles at work. In Anderson, the State of Ohio required nominating petitions for independent presidential candidates to be filed on March 20, 1980. 460 U.S. at 782-83, 103 S.Ct. at 1566-67. John Anderson did not announce his independent candidacy for the office of President until April 24, 1980. Id. at 782, 103 S.Ct. at 1566. His Ohio supporters gathered the required petition signatures by May 16, 1980, but Anderson was denied a place on the ballot for failure to submit the petitions by the March 20th deadline. Id. The Supreme Court, applying the standard recounted above, found this deadline impermissible.

Initially, the Court examined the extent of the burden and concluded that it was substantial. The Court relied on several factors in reaching this conclusion. First, the early filing deadline placed independent presidential candidates at a competitive disadvantage. Independents were required to file by mid-March, but the major parties had flexibility because Ohio law provided for automatic inclusion of major-party nominees. Id. at 790-91 & n. 11, 103 S.Ct. at 1570-71 & n. 11. Hence, independents were forced to identify themselves early, but the identities of the major-party opponents were not established until after the August national conventions. Id.

The Court also found that the Ohio requirement burdened the signature-gathering process. Because the independent candidates’ petitions were due by mid-March, they would have to be gathered “[w]hen the primary campaigns are far in the future.” Id. at 792, 103 S.Ct. at 1572. Thus the early deadline hampered independent candidates’ organizing efforts such as potential harm to volunteer recruiting, publicity, and campaign contributions. Id.

Additionally, the Court placed the state-imposed restriction in the context of a national presidential election. Describing a “uniquely important national interest,” the Court noted that in a presidential election a state’s stringent ballot access requirements, including filing deadlines, has an impact beyond its borders. Id. at 794-95, 103 S.Ct. at 1572-73. “[T]he State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries.” Id. at 795, 103 S.Ct. at 1573. The Court concluded that Ohio’s filing deadline placed a significant state-imposed restriction on a nationwide election process. Id.

Having concluded that the burden imposed by the Ohio restriction was significant, the Court turned its attention to the State’s proffered justifications: voter education, equal treatment, and political stability. In an age of instantaneous verbal and visual communication and in the context of intensely publicized presidential elections, the Court found the legitimate state interest in fostering voter education insufficient to justify the significant burden. Id. at 797, 103 S.Ct. at 1574. Similarly, the Court rejected the equal treatment justification noting that even though candidates in the primary election must declare candidacy on the same date as independents, the consequence of failing to meet the requirement was entirely different. Id. at 799, 103 S.Ct. at 1575. The names of the Democratic and Republican nominees would appear on the ballot even if they decided to run after the March deadline had passed; the independent was forever denied access. Finally, the Court rejected Ohio’s political stability interest as merely a desire to protect existing political parties. Id. at 801, 103 S.Ct. at 1576.

In sum, the Court found that the discriminatory Ohio regulation unduly burdened the rights of voters to express their support for the independent Anderson. In an election of nationwide importance, these burdens outweighed the state’s interest in imposing the March deadline. Id. at 805-06, 103 S.Ct. at 1578-79. As a result, the Court struck down the offensive state election law.

The Court used Anderson’s analytical process but came to a different conclusion when it considered the constitutionality of Hawaii’s prohibition on write-in voting in Burdick. After reiterating the flexible standard announced in Anderson, the Court assessed the extent of the burden created by the complete prohibition on write-in votes. In Hawaii, there were three ways to gain access to the primary ballot. First, a party petition could be filed 150 days before the primary with 1% of the State’s registered voters. Burdick, 504 U.S. at 435, 112 S.Ct. at 2064. Sixty days before the primary, candidates filed nominating papers with a specified number of signatures. Id. The winner in each party advanced to the general election. A second method was through the established party route. Established parties that had qualified by petition for three consecutive years did not have to file party petitions for ten years. Id. at 436, 112 S.Ct. at 2064-65. Like new parties, the candidates were required to file nominating papers sixty days before the primary. The third method was through a nonpartisan ballot. Nonpartisans could be placed on the nonpartisan primary ballot by filing nominating papers sixty days before the primary. Id.

The Court characterized this system as one of “easy access” to the ballot until the cutoff date for filing nominating petitions, two months before the primary. Id. Consequently, any burden was borne only by those who failed to identify their candidate early enough. The Court reiterated that it gave “little weight to ‘the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status.’ ” Id. at 437, 112 S.Ct. at 2065 (quoting Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974)). The Court concluded that Hawaii’s ban on write-in votes imposed only a limited burden on voters’ rights. Id. at 438-39, 112 S.Ct. at 2065-66.

Because the burden was slight, the State did not have to establish a compelling interest to “tip the constitutional scales in its direction.” Id. at 439, 112 S.Ct. at 2066. The Court found that Hawaii’s goals of averting divisive sore-loser candidacies, promotion of a two-stage primary-general election process, and prevention of party raiding were legitimate. Id. at 439-40, 112 S.Ct. at 2066-67. Because the Court did not require strict scrutiny, the State’s interests were thus sufficient to outweigh the limited burden that the write-in ban imposed on Hawaii’s voters. Id. at 441, 112 S.Ct. at 2067.

Anderson and Burdick provide us with the tools to resolve the challenge made today to the provisions of the Texas Election Code. We must first assess the extent of the burden the provisions create on the rights of voters. If the burden is great, the State must provide a compelling state interest and narrow tailoring of its rule. However, if the burden is slight, legitimate state interests will be sufficient to support the constitutionality of the provisions.

ANDERSON/BURDICK APPLIED

A. Burdens Imposed

Appellants first challenge the January 2nd deadline requirement for filing the declaration of intent to run for office. They argue that this deadline is a great burden because failure to comply forever denies minor-party and independent candidates access to the ballot. Appellants seize upon Anderson and contend that if a March 20th petitioning deadline is constitutionally impermissible then the January 2nd declaration deadline must similarly fall. We conclude otherwise.

The required declaration of intent is simply an indication by the candidate of the intention to seek public office. It requires little more than the candidate’s name, address, and office sought. Tex.Elec.Code Ann. § 142.002(b) (West 1986). We can only conclude the obvious: Providing one’s name, address, and office sought is not a great burden. Indeed, furnishing such information is not only a slight requirement, but is essential for conducting fair, honest, and orderly elections. Appellants recognize this fact and focus their attack not on what they are required to do, but when they are required to do it. Fundamentally, they challenge the deadline because it requires them to decide to run for office sooner rather than later. But the Supreme Court has twice instructed that such a consideration is of little weight.

In Storer v. Brown, the Court upheld a ballot access law that refused to recognize independent candidates until a year after they had disaffiliated from a political party. 415 U.S. at 726, 736, 94 S.Ct. at 1277, 1282. The Court gave little weight to the fact that those candidates must make the decision to seek office more than a year in advance. Id. Likewise, in Burdick the Court gave little weight to the plight of would-be candidates who failed to decide to run for office and file the required nominating papers two months before the primary election. 504 U.S. at 437, 112 S.Ct. at 2065. Hence, the Supreme Court fails to see any undue burden occasioned by requiring candidates to decide to seek public office more than a year in advance of the general election and two months prior to the primary. Much like the timetables approved in Storer and Burdick, the Texas declaration of intent deadline merely requires a candidate to decide to run for office approximately eleven months before the general election and two months before the primary. In the context of a nondiscriminatory deadline that applies to all parties and candidates, we see little burden from the declaration requirement.

Appellants’ contention that they fall squarely within Anderson is incorrect. While the Supreme Court found that Ohio’s March 20th deadline was impermissible, it did so in a very different context. First, the Court recognized that Ohio’s deadline was discriminatory because only independent candidates were denied access while major-party candidates were placed on the ballot regardless of compliance. In contrast, the Texas requirement is nondiscriminatory. It applies to all candidates, major-party, minor-party, and independents alike. Failure to decide to seek public office by the January deadline denies ballot access across the board. Secondly, Ohio’s deadline was a petitioning deadline where Anderson was required to have no less than 5,000 and no more than 15,000 signatures by March 20th. In contrast, Texas requires only an indication of intent to run; no petitions are required at this stage. Furthermore, the Court specifically cast the burden in context of requiring petitions be completed far in advance of the primary elections. Such is not the case here where petitioning does not commence until after the primary election and petitions are not due until late May. Finally, the Court emphasized that the burden was magnified in Anderson because of the implications of a national election contest. Ohio’s restriction burdened the nationwide electoral process. The challenged restriction here does not apply to presidential contests. See Tex.Elec. Code Ann. §§ 192.031, .032(b), (c) (West 1986 & Supp.1996) (describing requirements for placement of presidential candidates on the general election ballot).

Guided by the Supreme Court’s jurisprudence in this area, we conclude that the January 2nd deadline for filing the declaration of intent is not a significant burden. In 1994, 92 independent candidates submitted valid declarations by the January deadline. As this compliance illustrates, the deadline merely requires a candidate to decide to run for office. This burden is slight.

Appellants next challenge the deadline requirements for holding the various nominating conventions. As with the deadline for the declaration of intent, Appellants do not contend that the requirement is impermissible. Rather, they argue that deadlines for holding the various conventions are too early thereby restricting the choices available to Texas voters.

We have little difficulty in concluding that the timeframe requirements for the nominating conventions are not a significant burden. The Supreme Court has already examined the framework of the Texas electoral scheme and held that requiring minor political parties to nominate candidates through a eon-vention process is constitutionally permissible. See White, 415 U.S. at 780-81, 94 S.Ct. at 1305-06. Moreover, the convention process approved by the Supreme Court in White held the various nominating conventions sequentially, with precinct conventions on the same date as the statewide primaries for the major parties, the county conventions on the following Saturday, and the state convention on the second Saturday in June. Id. at 773-74, 94 S.Ct. at 1302-03. This is precisely the same process Texas employs today. The only difference is that at the time of White Texas held its primary election in May. The switch to “Super Tuesday” in March caused a commensurate switch in the dates of the precinct, county, and district conventions. We find this change only a minor burden, given the Supreme Court’s holding that the Texas electoral system, with a convention nominating process linked to the date of the primary election, “in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life” and “affords minority political parties a real and essentially equal opportunity for ballot qualification.” Id. at 787-88, 94 S.Ct. at 1309-10.

Finally, Appellants challenge the May deadlines for filing petitions by minor-party and independent candidates. Under the Election Code, minor parties have seventy-five days from the date of the precinct convention to complete the petitioning. In 1994, this deadline fell on May 23rd. An independent candidate has thirty days from the date of the primary runoff election to complete the petitioning. In 1994, this deadline fell on May 12, 1994. As with the other deadlines, Appellants’ sole contention is that these deadlines come too early.

The Texas requirement that minor parties and independents demonstrate sufficient electoral support for ballot access was also approved by the Supreme Court in White. Id. at 782-83, 94 S.Ct. at 1306-07. The electoral scheme approved in White included a petition-gathering period that began after the primary election. Id. at 784-85, 94 S.Ct. at 1307-08. Furthermore, the amount of time allotted for obtaining the petition signatures also is constitutional. See id. at 786-88, 94 S.Ct. at 1308-09. In light of White, we are naturally reluctant to categorize the petitioning deadlines as a significant burden.

Appellants once again rely on Anderson. However, the Texas requirement differs from Anderson in two significant ways. As previously noted, Ohio’s March deadline required petitions to be submitted before the primary season began whereas in Texas signatures cannot be gathered and petitions cannot be submitted until after the primary. Thus any concern that the deadline might hamper organizing efforts is lessened because of the heightened political interest in the aftermath of the primary election. Additionally, at the time of Anderson there was no “Super Tuesday.” With the advent of “Super Tuesday” all aspects of Texas political life have been ratcheted forward. Requiring minor parties and independent candidates to meet constitutional petitioning requirements at an earlier stage is not a severe burden.

B. Legitimate State Interests

Concluding that the challenged deadlines are reasonable, nondiscriminatory restrictions on the rights of voters, we turn to the State’s justifications. Because the burdens are not severe, the State need not present narrowly-tailored regulations to advance a compelling state interest. Burdick, 504 U.S. at 434, 112 S.Ct. at 2063-64. Rather, the State’s important regulatory interests are sufficient to justify the regulations. Id.

The State of Texas advances several legitimate interests to support the deadlines. Initially, the State notes that equal treatment warrants the provisions. By requiring all candidates to indicate their intention to run for office on the same date, the State places all candidates in the same position. As for the convention process, it serves as a substitute for the primary election process. Thus the minor parties nominate candidates through the conventions around the same time as major parties nominate through the primary election. This is not more burdensome than what is required of the major parties. Similarly, the petitioning deadlines are a surrogate for participation in the primary elections. Minor-party candidates and independents do not participate in the primary. Nonetheless, the State has a legitimate goal of requiring a demonstration of sufficient public support to gain access to the ballot. Major-party candidates demonstrate support at the time of the primary election. A petition deadline linked to the primary election date that allows sufficient time to gather signatures merely requires other candidates to demonstrate public support around the same time as their major-party opponents.

Additionally, the State notes that voter education is enhanced by the deadlines. These deadlines are designed to allow the identification of candidates at an early date to allow voters to decide whom to support. The State argues that this is particularly important given the requirement that primary election voters are prohibited from signing nominating petitions for minor-party or independent candidates. See Tex.Elec. Code Ann. § 142.009 (West 1986). Thus, voters need to identify all potential candidates prior to the primary because the decision to vote in the primary election is essentially one to eschew the nominating process of minor-party or independent candidates.

These justifications proffered by the State for the deadlines are sufficient under the standard announced in Anderson and Bur-dick to support the reasonable, nondiscriminatory restrictions. The State’s regulatory interests in equal treatment of candidates and fostering an informed electorate provide ample reason for the deadlines. We hold that these legitimate interests asserted by the State are sufficient to outweigh the limited burden the challenged deadlines impose upon the rights of Texas voters.

VOTER REGISTRATION NUMBER REQUIREMENT

While none of the challenged deadlines create an undue burden on ballot access, a different conclusion is compelled by the voter registration number requirement. The Texas Election Code requires that nominating petitions must contain each signer’s voter registration number. Id. § 141.063(2)(B). In Pilcher v. Rains, 853 F.2d 334 (5th Cir.1988), we held that this requirement created an impermissible burden on ballot access by minor political parties and enjoined its use. The two independent candidates in this lawsuit contend that the State continues to require independents to comply with this constitutionally-infirm provision. The recommendation of the magistrate judge did not specifically address the voter registration number requirement. The judgment of the district court, adopting the magistrate judge’s recommendation, granted the State’s motion for summary judgment on “any and all claims.”

Despite our holding in Pilcher, the State admits that it requires signature petitions other than those of minor parties to include voter registration numbers. Defendant’s Original Answer ¶43. However, the State offers no defense for the registration number requirement. We have no difficulty in holding that the requirement is constitutionally impermissible. Pilcher controls. The State offers no rationale why the requirement that is unconstitutional as applied to minor parties is somehow acceptable as to independent candidates. Similarly, we decline to craft such an illogical distinction.

CONCLUSION

The provisions of the Texas Election Code establishing deadlines for the declarations of intent, for minor-party nominating conventions, and for the petitioning process do not violate the First and Fourteenth Amendments. The requirement that voter registration numbers be included on independent candidate petitions, however, is unduly burdensome and constitutionally impermissible. We AFFIRM the judgment in part as it relates to the challenged deadlines and REVERSE in part as it relates to the voter registration number requirement.

      . Nominees of major political parties file their declarations with party officials. Tex.Elec.Code Ann. § 172.022 (West 1986). Applications for nomination by convention are filed with party officials who in turn must file them with the Secretary of State. Id. § 181.032. Independent candidates file with the Secretary of State for statewide or district office or the county judge for county or precinct office. Id. § 142.005.

      . Candidates of parties nominating by primary election must also pay a filing fee. See Tex.Elec. Code Ann. §§ 172.021, .024 (West 1986 & Supp.1996).

      . In addition to the primary election, the major parties also hold precinct, county, and district conventions on the same dates. See Tex.Elec. Code Ann. §§ 174.022(a), .063 (West 1986). The state conventions may be convened on any day in June. Id. § 174.092(a). In 1994, the State Republican Convention was held on June 11th.

      . Appellants also rely on a pre-Burdick case. In New Alliance Party of Alabama v. Hand, 933 F.2d 1568 (11th Cir.1991), a panel of the Eleventh Circuit affirmed, by adoption of the district court's opinion, that Alabama’s April 6th filing deadline was constitutionally impermissible. However, the Alabama deadline was not merely a declaration of intent, but also required filing of signature petitions. Hand, 933 F.2d at 1570. Moreover, the petition deadline was sixty days prior to the primary. Id. Thus, the Alabama deadline created the same type of discriminatory impact on minor parties as the early petition deadline in Anderson because signatures had to be obtained far in advance of the primary at a time when the major parties had not selected their candidates. This situation is, of course, readily distinguishable from the Texas scheme. The early January deadline is merely a nondiscriminatory declaration deadline. Petitions are not required until May and can only be obtained after the primary election.

      . We also note that in 1994 sixteen independent candidates submitted valid petitions by the May deadline. Similarly, two minor parties, the Libertarian Party in 1988, 1990, and 1992, and the New Alliance Party in 1988, fulfilled the statutory requirements to appear on the ballot.

      . In fact, the Supreme Court rejected the idea that the convention process was more burdensome and intimated that the major parties may actually have a greater burden under the Texas system because they must conduct both a primary and runoff election and subsequently hold various precinct, county, and state conventions to promulgate party platforms and conduct other party business. White, 415 U.S. at 781-82, 94 S.Ct. at 1306.

      .The Supreme Court has found the number of days allotted to petition-gathering under the Texas scheme constitutionally permissible. White, 415 U.S. at 786-88, 94 S.Ct. at 1308-09.

      . Because these legitimate state interests are sufficient to support the nondiscriminatory regulations at issue here, we need not address the State's other proffered justifications for the regulations.

      . The State's sole contention on appeal is that the independent candidates, Ken Henderson and Terry Moser, lack standing. In this regard we note that Henderson clearly has a personal stake in the outcome of this controversy sufficient to demonstrate standing to challenge this ballot access regulation. See Henderson v. Fort Worth Indep. Sch. Dist., 526 F.2d 286, 288-89 n. 1 (5th Cir.1976); McLain v. Meier, 851 F.2d 1045, 1048 (8th Cir.1988); see also Stevenson v. State Bd. of Elections, 638 F.Supp. 547, 549 (N.D.Ill.) (failure to tender petition and have it rejected does not deprive candidate of standing), aff'd, 794 F.2d 1176 (7th Cir.1986). Because Henderson has standing, we conclude that the attack on the voter registration number requirement is properly before us for review. Thus, we need not address the State’s standing challenge as it relates to Moser.


source: Caselaw Access Project

author: REYNALDO G. GARZA, Circuit Judge:

license: Public Domain

text:
    Robert R. WIGHTMAN, Plaintiff-Appellant, v. TEXAS SUPREME COURT and Texas State Bar, Defendants-Appellees.
    No. 95-10895
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1996.
    Robert Richard Wightman, Dallas, TX, pro se.
    Blake 0. Brodersen, Assistant Attorney General, Office of the Attorney General of Texas, Austin, TX, for Texas Supreme Court.
    Linda Ann Acevedo, Assistant General Counsel, Office of the General Counsel for the State of Texas, Austin, TX, for State Bar of Texas.
    Before REYNALDO G. GARZA, JONES and BARKSDALE, Circuit Judges.
   REYNALDO G. GARZA, Circuit Judge:

Background

Plaintiff-Appellant Robert R. Wightman (“Wightman”), a licensed attorney in the State of Texas, challenges the district court’s dismissal of his action to enjoin ongoing attorney disciplinary proceedings. He is the subject of a complaint issued in June, 1995, by the State Bar of Texas for violations of the Texas Disciplinary Rules of Professional Conduct, specifically Rule 8.02(a). Rule 8.02(a) prohibits attorneys in the State of Texas from making

a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge....

Tex.Disciplinary R.Prof.Conduct 8.02(a). Wightman made controversial statements in Motions to Recuse, letters to the court, and letters to opposing counsel. Many of the statements amounted to venomous character attacks on certain state judges. The statements, made in the course of his representation of clients, are the subject of the Bar complaint.

Wightman appealed the State Bar’s initial determination that the grievance against him revealed professional misconduct. He subsequently entered federal court to stop the ongoing state proceedings to remedy what he viewed as an impending constitutional violation. He filed this lawsuit in August, 1995, against Appellees, the Texas Supreme Court and the State Bar of Texas, seeking declaratory and preliminary injunctive relief. Wightman sought to enjoin the State Bar from proceeding with its disciplinary action against him on the basis that Rule 8.02(a) and Tex.R.Diseiplinary P. 2.15(a) violated his right to free speech and that the complaint failed to provide him with adequate notice of the claim against him. Wightman requested an expedited hearing on the matter. Appel-lees filed responses to Wightman’s request for preliminary relief and also motions to dismiss.

After a hearing, the district court denied Wightman’s application for a temporary restraining order and granted Appellees’ motions to dismiss. The district court dismissed the action on abstention grounds. The court also found that Wightman had no likelihood of success on the merits of his claims, that he possessed an adequate remedy at law, that the harm to the Defendants by the issuance of an injunction would exceed the harm to Wightman, and that the public interest would not be served by the issuance of an injunction or restraining order.

Wightman filed a motion for a new trial which was denied by the district court. He then brought this timely appeal of the order of dismissal and denial of injunctive relief. For the reasons discussed herein, we affirm the order dismissing the suit on abstention grounds. Our holding that the district court properly abstained from interfering in an ongoing state proceeding obviates discussion of Wightman’s request for preliminary in-junctive relief.

Discussion

A district court’s ruling on a motion to dismiss is reviewed de novo. FDIC v. Ernst & Young, 967 F.2d 166, 169 (5th Cir.1992). The district court followed the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), in abstaining from deciding Wightman’s constitutional challenges. In Younger, the Supreme Court “instructed federal courts that the principles of equity, comity, and federalism in certain circumstances counsel abstention in deference to ongoing state proceedings.” Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir.1996) (discussing Younger, 401 U.S. at 43-44, 91 S.Ct. at 750-51).

In Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982), the Supreme Court set out a three-part test describing the circumstances under which abstention was advised: (1) the dispute should involve an “ongoing state judicial proceeding;” (2) the state must have an important interest in regulating the subject matter of the claim; and (3) there should be an “adequate opportunity in the state proceedings to raise constitutional challenges.” It is now well recognized that attorney disciplinary proceedings are among those judicial proceedings invested with sufficiently important state interest to warrant deference under Younger. Id. at 435-437, 102 S.Ct. at 2522-24; Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir.1984); Fieger, 74 F.3d at 746.

When, however, a state bar acts in bad faith or to retaliate against First Amendment protected activity, the courts should not abstain. Hensler v. District Four Grievance Committee, 790 F.2d 390, 391 (5th Cir.1986). As we stated in Hensler,

Under Younger, the federal court should avoid impeding the Texas state authorities in a disciplinary proceeding involving an attorney, absent allegations and proof of bad faith.

Id. at 391 (citing Bishop, 736 F.2d at 294) (emphasis added). The bad faith exception is narrow and is to be granted parsimoniously. Hefner v. Alexander, 779 F.2d 277 (5th Cir.1985).

Wightman does not contest that the disciplinary actions taken against him involve “ongoing state judicial proceedings.” Nor does he contest that the state has an important interest in regulating attorneys. He claims instead that the federal court should not abstain because Texas disciplinary proceedings do not provide an adequate opportunity to raise his constitutional claims, the State Bar is acting in bad faith, and Rule 8.02(a) is unconstitutional on its face. We will address these contentions in turn.

Adequacy of State Proceedings

We will not summarize Texas’s disciplinary process except to state that an attorney has several opportunities to challenge the State Bar’s allegations of misconduct before the attomey can be disciplined. An attorney can choose to have his dispute heard before a state district court or the State Bar grievance committee. Appeals to higher courts are available from either forum. See Tex.R.Disciplinary P. 1.06, 2.09, 2.11-2.13, 3.08, and 3.16.

Wightman’s case is still in its early stages. At the time Wightman filed this action, he had not yet been before an investigatory panel of the grievance committee. Wight-man has not shown that the grievance committee or the courts are somehow unable to address his constitutional concerns. Nor is there any rule or statute that prevents an attorney from presenting constitutional claims or a panel or court from considering such claims. He will thus be able to raise his constitutional and procedural claims at the investigatory hearing, in either the district court or before the State Bar grievance committee, and in subsequent appeals.

Where state disciplinary proceedings allow an attorney to make constitutional objections to the proceedings at multiple stages, the Supreme Court and this Court have had no difficulty in concluding that those proceedings provide an “adequate opportunity in the state proceedings to raise constitutional challenges” under Younger. Middlesex, 457 U.S. at 435-437, 102 S.Ct. at 2522-24; Bishop, 736 F.2d at 294. We conclude as we have in the past that “[T]he Texas scheme for disciplining attorneys is fully capable of considering the constitutional arguments of attorney-defendants ...” Bishop, 736 F.2d at 294.

Bad Faith/Harassment Exception

Wightman claims, nonetheless, that the State Bar has acted in bad faith and has harassed him. However, more than this allegation is required. He must offer some proof. Hensler, 790 F.2d at 391. Wightman has pled no facts to support his conclusion. At the TRO hearing, Wightman produced no evidence of retaliatory or bad faith action by the State Bar. The record shows nothing more than adherence to standard procedure and compliance with statutoiy requirements on the part of the State Bar. Texas’s extensive and lengthy disciplinary procedures protect Wightman against bad faith behavior by the State Bar. The bad faith exception to abstention does not apply in this case.

Facial Unconstitutionality of Rule 8.02(a)

Wightman also argues that courts should not abstain when a statute is unconstitutional on its face. However, “[T]he possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good faith attempts to enforce it,” especially absent “any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Younger, 401 U.S. 37, 53-54, 91 S.Ct. 746, 755; Fieger, 74 F.3d at 750. No showing of bad faith or harassment has been made in this case. Wightman’s argument thus does not convince us that the district court should interfere in the ongoing state proceeding. We believe that Wightman will have his opportunity to test the constitutionality of Rule 8.02(a) before the State Bar of Texas and in state court.

Conclusion

Wightman attacks an ongoing state disciplinary proceeding. Because this judicial type of proceeding involves an important state interest and because the process should provide ample opportunity for Wightman to raise his constitutional concerns, we conclude that the district court correctly abstained from this matter by dismissing the case.

AFFIRMED.

      . The actual comments are not relevant to this Court’s discussion and will not be included herein.

      . Texas Rule of Disciplinary Procedure 2.15 requires confidentiality with regard to disciplinary actions. Wightman argues that the confidentiality requirement acts as a limit on his free speech right to challenge harassing behavior on the part of the State Bar. The State Bar of Texas has not pursued- any action against Wightman under Rule 2.15. No such action has even been contemplated against Wightman, as shown in the record. His fear of possible enforcement of Rule 2.15 does not present this Court with a case or controversy. Wightman thus lacks standing to challenge Rule 2.15. His arguments on this rule will not be addressed.

      . Wightman also claims that he was not informed which rule he allegedly violated and that appeal would be futile because the Texas Supreme Court "has already announced its position” that the challenged speech is not protected by the. First Amendment. The first argument seems foolish — the first sentence of the grievance form states that
      Attorney ... Wightman has made numerous statements that he knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of [various judges].
      The language of this sentence tracks the language of Rule 8.02(a). See language of Rule 8.02(a) supra. Wightman is not ignorant as to the charge against him. As for the Texas Supreme Court’s pronouncement, such argument was made in a responsive pleading as part of litigation, not as a judicial declaration of law. Wightman cannot yet claim that appeal would be futile.

      . On facts very similar to those of the instant case, the Sixth Circuit rebuffed on abstention grounds an attorney’s attempt to enjoin state disciplinary proceedings. The attorney was the object of a complaint under Michigan’s Rule 8.2(a) (duplicate of Texas's' Rule 8.02(a)) and other rules for statements made against Michigan judges and prosecutors. Fieger, 74 F.3d at 742. The Sixth Circuit held that an attorney's opportunity to raise constitutional concerns before the Michigan Attorney Discipline Board and in subsequent appeals satisfied Younger s third requirement. Id. at 745-746.


author: EMILIO M. GARZA, Circuit Judge:

text:
    Virginia WELLER, Plaintiff-Appellee, v. CITATION OIL & GAS CORPORATION, and Ralph Hollingshead, Defendants-Appellants.
    No. 94-20439.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1996.

      Douglas E. Hamel, Suzanne M. Lehman, Vinson & Elkins, Houston, TX, for Appellants.
    Eliot P. Tucker, Mandeli & Wright, Houston, TX, for appellee.
    Before GARWOOD, EMILIO M. GARZA and DEMOSS, Circuit Judges.
   EMILIO M. GARZA, Circuit Judge:

Defendants Citation Oil & Gas Corporation (“Citation”) and Ralph Hollingshead appeal a jury verdict awarding plaintiff Virginia Weller damages on her employment discrimination claims. We reverse.

I

Weller worked as a Contract Administrator in Citation’s Contract and Marketing Department. The department consisted of Weller, her supervisor Ralph Hollingshead, and one other female employee. Through Weller’s work monitoring natural gas stored in the El Paso Natural Gas Pipeline, Weller discovered that Citation owned a quantity of gas which was not reflected in Citation’s records. Before completing a memorandum to Hollingshead detailing her discovery, Weller informed the Executive Vice President’s secretary about the gas. When the Executive Vice President phoned Hollingshead to discuss the discovered gas, Hollingshead was “caught off guard” and was unprepared to explain the status of the gas. Hollingshead’s superiors reprimanded him, and in turn, Hollingshead reprimanded Weller for ignoring proper channels. According to Weller, the reprimand was unnecessarily harsh. During the next four days, Weller testified that Hollingshead seemed angry and did not speak to her.

Shortly thereafter, Hollingshead loaned Weller a religious children’s book about angels. Weller testified that she was .glad they were speaking again. Upon returning the book the next day, Weller told Hollingshead that the book presented a “unique thought” on the subject of angels. Hollingshead and Weller proceeded to have a short conversation about the death of John the Baptist, and how a woman, possessed with a spirit called “Jezebel,” danced when John the Baptist was beheaded. Hollingshead then gave Weller some excerpted chapters from The Three Battlegrounds, a book by Francis Frangi-pane. According to Weller, she felt “anger” and “coldness” coming from Hollingshead when he handed her the article. As he handed her the material, Hollingshead stated “the Spirit of Jezebel is alive today.”

The excerpted material Hollingshead gave Weller contained an intense religious diatribe concerning the “Spirit of Jezebel,” a “controlling” and “manipulative” spirit bent on “corrupting” society and turning it away from a fundamentalist understanding of the teachings of Christ. According to the except, the Spirit of Jezebel “is without gender,” yet prefers to work through women because of the “uniqueness of the female psyche in its ability to manipulate without physical force.” The excerpt encourages its readers to “do battle” against the Spirit of Jezebel in order to maintain a fundamentalist Christian order.

Weller was deeply offended by the excerpt’s contents. She believed that Hollings-head intended the material as a comment on her assertiveness at work. Three weeks later, after consulting an attorney, Weller concluded that she could no longer work with HoUingshead. She complained to Citation officials and requested a transfer. Citation officials made an inquiry into the-incident and reprimanded HoUingshead but were unable to transfer WeUer. Citation officials told WeUer that they had spoken to HoUings-head and anticipated no further problems if she would return to work. After several weeks of negotiations, she resigned. WeUer filed suit against Citation and HoUingshead, asserting claims for sexual harassment, constructive discharge, and intentional infliction of emotional distress. A jury found in her favor and awarded damages on aU claims. Defendants now appeal the jury verdict.

II

The defendants argue that WeUer presented insufficient evidence to support the jury's verdict. In reviewing a ease for sufficiency of the evidence, we consider aU the evidence presented, not just the evidence supporting the verdict, but in the Ught most favorable to, and drawing all reasonable inferences in favor of, the party who obtained the verdict. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (ere banc). We wiU reverse only if reasonable minds exercising impartial judgment could not have arrived at the verdict. DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591, 594 (5th Cir.), cert. denied, — U.S. -, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995).

To state a claim for relief under Title VII for gender discrimination based on a theory of a hostile work environment, a plaintiff must prove (1) that she belongs to a protected class, (2) that she was subject to unwelcome harassment, (3) that the harassment was based on sex, (4) that the harassment affected a term, condition or privilege of employment, and (5) that the employer knew or should have known about the harassment and failed to take prompt remedial action. Nash v. Electrospace System, Inc., 9 F.3d 401, 403 (5th Cir.1993). SexuaUy discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment violative of Title VII. Harris v. Forklift Systems, Inc., 510 U.S. 17, -, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). In order to be actionable, however, the chaUenged conduct must create an environment that a reasonable person would find hostile or abusive. Id. Whether an environment is hostile or abusive depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance. Id. at -, 114 S.Ct. at 371. We have previously noted that the “ ‘mere utterance of an ... epithet which engenders offensive feelings in an employee’ ” is insufficient, without more, to support Title VII liability. DeAngelis, 51 F.3d at 595 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)).

Citation and HoUingshead argue that giving the Spirit of Jezebel excerpt to WeUer was insufficient to support the jury’s finding of hostile work environment. We agree. Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember’s opportunity to succeed in the workplace. DeAngelis, 51 F.3d at 593. Viewing the evidence in the Ught most favorable to the verdict, the jury could have reasonably inferred that HoUingshead meant the article as retributive epithet—that HoUingshead remained angry at WeUer and that he was calling her a “Jezebel.” We do not doubt that WeUer was deeply offended by the article. However, we note that making actionable “conduct that sporadicaUy wounds or offends but does not hinder a female employee’s performance, would not serve the goal of equahty.” Id. Instead, a lesser standard “would attempt to insulate women from everyday insults as if they remained models of Victorian reticence.” Id. Such a result is not the goal of Title VII. Id. We therefore hold that it was unreasonable, on the evidence presented, for the jury to find that Hollingshead’s conduct created a hostile work environment. Accordingly, we reverse the jury’s verdict awarding Weller damages under a hostile work environment theory.

Ill

The defendants next contest the jury’s award for intentional infliction of emotional distress. Under Texas law, intentional infliction of emotional distress requires proof (1) that the defendant acted intentionally or recklessly, (2) that the defendant’s conduct was extreme and outrageous, (3) that the defendant’s actions caused the plaintiff emotional distress, and (4) that the emotional distress suffered by the plaintiff was severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989). Conduct is “outrageous,” for purposes of an intentional infliction of emotional distress claim, “if it surpasses all bounds of decency, such that it is utterly intolerable in a civilized community.” Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993) (internal quotation marks omitted). We have previously stated, in affirming summary judgment for a defendant on an intentional infliction of emotional distress claim, “Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions.” Id. at 243.

Citation and Hollingshead argue that the evidence was insufficient to support Weller’s claim of intentional inflietion of emotional distress. After carefully reviewing the evidence in the light most favorable to the verdict, we conclude that Weller presented insufficient evidence to support the jury’s verdict for intentional infliction of emotional distress. The Jezebel excerpt may have been hurtful and offensive, but intentional inflietion of emotional distress requires evidence of conduct beyond mere insults, indignities, or petty oppressions. Id. Weller failed to present such evidence. Therefore, it was unreasonable for the jury to conclude that Hollingshead’s conduct was sufficiently “outrageous” to support an intentional infliction of emotional distress claim. See Ugalde, 990 F.2d at 243 (holding employer’s repeated references to an Hispanic employee as “wetback” insufficiently outrageous and extreme to support a claim for intentional infliction of emotional distress). Accordingly, we reverse the jury’s verdict on Weller’s claim of intentional infliction of emotional distress.

IV

For the foregoing reasons, we REVERSE and RENDER judgment in favor of the defendants.

      . Weller testified that she was not offended, by this book.

      . The article states, “When we speak of Jezebel, we are identifying the source in our society of obsessive sensuality, unbridled witchcraft and hatred of male authority.”

      . The article states, "let us recognize that this demon can also operate through men. In fact, Jezebel seeks the highly refined qualities of the professional musician_” The article continues that the spirit "flows unhindered throughout the entertainment industries. It flaunts itself in the world of fashion; it holds degrees in the philosophical departments of our schools and colleges.”

      . 42 U.S.C. § 2000e-2.

      . It is undisputed that the Jezebel excerpt was an isolated incident in an otherwise satisfactory work relationship.

      . In DeAngelis, we noted the yet unresolved dilemma facing courts adjudicating claims at the intersection of Title VII and the First Amendment:
      Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech.

        DeAngelis, 51 F.3d at 596-97. Supreme Court precedent in this area provides little guidance concerning whether conduct targeted for its expressive content, like Hollingshead's conduct in this case, may be regulated under Title VII. See Wisconsin v. Mitchell, 508 U.S. 476, 485-87, 113 S.Ct. 2194, 2200, 124 L.Ed.2d 436 (1993) (holding that conduct not targeted on the basis of its expressive content may be regulated under Title VII). Because we find that the evidence was insufficient to support the jury's verdict, we leave this troubling question for another day.

      . Because Weller failed to present sufficient evidence to support her hostile work environment claim, her constructive discharge claim necessarily fails as well. See Landgraf v. USI Film Prods., 968 F.2d 427, 429 (5th Cir.1992), affirmed, — U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment.”). We also need not address whether the juty properly held Hollingshead personally hable under Title VII. See Grant v. Lone Star Co., 21 F.3d 649, 650 (5th Cir.) (refusing to hold individual, who does not qualify as an “employer” under Title VII, personally liable for creating hostile work environment), cert. denied, - U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994). Nor need we address Citation’s claim that the company took sufficient remedial steps to insulate itself from liability. See Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir.1994) (insulating an employer from Title VII liability where an employer takes an employee’s allegations seriously, conducts a prompt and thorough investigation, and immediately implements remedial or disciplinaiy measures).

      . Having reversed the jury’s verdict in total, we need not address defendants’ other points of error.


author: PER CURIAM:

text:
    ESTATE OF Louis F. BONNER, Sr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 95-20895
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 4, 1996.
    Kenneth Alan Love, Love & Hrbacek, Sugar Land, TX, for plaintiff-appellant.
    Gary R. Allen, David I. Pineus, Pamela C. Berry, U.S. Department of Justice, Tax Division, Appellate Section, Washington, DC, for defendant-appellee.
    Before GARWOOD, WIENER and PARKER, Circuit Judges.
   PER CURIAM:

The estate of Lords F. Bonner, Sr., Appellant (“the estate”) filed suit to recover a refund of approximately $425,000 in estate taxes assessed by and paid to the Internal Revenue Service (“IRS” or “the government”). The estate and the government filed cross motions for summary judgment based on a joint stipulation of facts, but differing interpretations of the applicable law. The district court granted summary judgment for the government, ordering that the estate was not entitled to a refund of any estate taxes paid. We reverse.

FACTS

The estate’s decedent (“Bonner”) died on .January 11, 1989. At the time of his death, Bonner owned the following properties:

1) A fee simple 62.5% undivided interest in real property consisting of 2,107.33 acres in Angelina County, Texas (“the ranch”);

2) A fee simple 50% undivided interest in real property located in New Mexico (“New Mexico property”);

3) A fee simple 50% undivided interest in a 56 foot pleasure boat (“the boat”).

The remaining 37.5% interest in the ranch, 50% interest in the New Mexico Property and 50% interest in the boat were owned by a trust established by the will of Bonner’s wife (“Mrs. Bonner”) who died on December 7, 1986. The parties also stipulated that the fair market values of 100% fee ownership of the properties on the date of Bonner’s death were $1,800,000 for the ranch, $175,000 for the New Mexico property and $30,000 for the boat.

Mrs. Bonner’s estate elected to claim a marital deduction for the bequest to the trust under the Internal Revenue Code (“I.R.C.”), 26 U.S.C. § 2056(b)(7). The trust satisfied the test for qualified terminable interest property (QTIP) under that provision. Accordingly, a marital deduction was allowed to Mrs. Bonner’s estate for the value of these property interests passing to the trust. As required by I.R.C. § 2044, the value of these undivided interests held by the trust were included in the taxable estate of Bonner upon his subsequent death. The undivided interests owned by Bonner at his death were included in his taxable estate pursuant to I.R.C. § 2033.

Per the appraisal submitted by the estate as part of its summary judgment evidence, the fair market value of Bonner’s interest in the ranch claimed on the estate’s tax return included a 45% discount (below 62.5% of $1,800,000) based on the fact that is was a fractional undivided interest. The New Mexico property and the boat were likewise discounted on the estate’s tax return. The government did not stipulate to the appropriate amount of discount, if any, based on the undivided nature of the interests in question in the event that the Court finds that a discount is allowable as a matter of law.

On cross motions for summary judgment, the district court, adopting the reasoning of the government, held that the estate is not entitled to a refund of estate tax, granted the government’s motion for summary judgment and denied the estate’s motion for summary judgment.

STANDARD OF REVIEW

This appeal is taken from a final summary judgment predicated upon stipulated facts and the district court’s interpretation of a federal statute, which we review de novo. Douglass v. United Services Automobile Assoc., 65 F.3d 452 (5th Cir.1995).

AVAILABILITY OF FRACTIONAL INTEREST DISCOUNT

The sole question before us is whether the estate is precluded from applying a fractional interest discount against the value of these three properties for federal estate tax purposes.

We begin by recognizing that valuation of interests in property for federal tax purposes is a question of fact. Propstra v. United States, 680 F.2d 1248, 1251 (9th Cir.1982). Further, courts have consistently recognized that the sum of all fractional interests in a property is less than the whole and have upheld the use of fractional interest discounts in valuing undivided interests. See, e.g. Estate of Bright v. United States, 658 F.2d 999 (5th Cir.1981) (en banc). The discount is an acknowledgment of the restrictions on sale or transfer of property when more than one individual or entity hold undivided fractional interests. Estate of Wildman v. C.I.R., 58 T.C.M. 1006, 1989 WL 153505 (1989). Potential costs and fees associated with partition or other legal controversies among owners, along with a limited market for fractional interests and lack of control, are all considerations rationally related to the value of an asset. See id.

The government takes the position that the interest held by the QTIP trust and the interest held by Bonner merged at the time of Bonner’s death, pursuant to the plain language of § 2044, extinguishing the fractional undivided interests and resulting in 100% fee ownership of the assets by the estate.

Section 2031(a) provides that the value of a decedent’s gross estate includes the value of property included in his gross estate pursuant to §§ 2033 and 2044. Under § 2033, a decedent’s gross estate includes the value of all property that decedent owned at the time of his death. Under § 2044(a) and (b)(1)(A), it also includes the value of any property for which a deduction was allowed for the decedent’s spouse’s taxable estate under § 2056 by reason of the QTIP provisions of § 2056(b)(7). Property thus includable in the gross estate of the decedent “shall be treated as property passing from the decedent.” 26 U.S.C. § 2044(c). The government contends, and the district court found, that the “plain language of § 2044 resulted in 100% fee ownership by the estate at the moment of Bonner’s death, and precluded any potential problems with fractional ownership.” Such a reading is not supported by precedent or logic. In Estate of Bright v. United States, supra, this Court, sitting en banc, rejected a similar argument, there termed the “doctrine of family attribution.” In that case, Bright held a 27%% interest in an asset as executor of his deceased wife’s estate, while simultaneously holding an additional 27%% interest in the same asset in his individual capacity. This Court rejected the government’s contention that Bright’s interests for estate tax purposes should be treated as one 55% interest in the asset.

In Bright, we considered Reg. 20.2031-1(b), which provides:

The fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.

The “willing seller” is not the estate itself, but is a hypothetical seller. Therefore, family attribution, which depends on the identity of seller as the legatee and the executor, cannot control the value of the asset.

The question before us is controlled by the holding in Bright. Although § 2044 contemplates that the QTIP property will be treated as having passed from Bonner for estate tax purposes, the statute does not require, nor logically contemplate that in so passing, the QTIP assets would merge with other assets. The assets in the QTIP trust could have been left to any recipient of Mrs. Bonner’s choosing, and neither Bonner nor the estate had any control over their ultimate disposition. We are precluded from considering evidence submitted by the government regarding who actually received the assets. An estate tax is an excise tax on the transfer of property at death and accordingly the valuation is made as of the moment of death and must be measured by the interest that passes, as contrasted with the interest held by the decedent before death or the interest held by the legatee after death. Bright, 658 F.2d at 1006.

In addition to arguing that § 2044 mandates merging of the Bonners’ fractional interests in the assets, the government also argues that public policy dictates that the Bonners not use the QTIP device to avoid paying taxes on the unified value of the property. In fact, public policy mitigates in favor of the estate’s position in this litigation. The estate of each decedent should be required to pay taxes on those assets whose disposition that decedent directs and controls, in spite of the labyrinth of federal tax fictions. In this case, Mrs. Bonner controlled the disposition of her assets, first into a trust with a life interest for Bonner and later to the objects of her largesse. The assets, although taxed as if they passed through Bonner’s estate, in fact were controlled at every step by Mrs. Bonner, which a tax valuation with a fractional interest discount would reflect. At the time of Bonner’s death, his estate did not have control over Mrs. Bonner’s interests in the assets such that it could act as a hypothetical seller negotiating with willing buyers free of the handicaps associated with fractional undivided interests. The valuation of the assets should reflect that reality.

CONCLUSION

Based on the foregoing, we reverse the summary judgment for the government. Because the record discloses a genuine issue of material fact concerning the appropriate value of the fractional interest discounts, we remand to the district court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

      . The pertinent part of § 2044 reads:
      SEC. 2044. CERTAIN PROPERTY FOR WHICH MARITAL DEDUCTION WAS PREVIOUSLY ALLOWED.
      (a) GENERAL RULE. The value of the gross estate shall include the value of any property to which this section applies in which the decedent has a qualifying income interest for life.
      (b) PROPERTY TO WHICH THIS SECTION APPLIES. This section applies to any property if—
      (1) a deduction was allowed with respect to the transfer of such property to the decedent—
      (A) under section 2056 by reason of subsection (B)(7) thereof, or ...
      (c) PROPERTY TREATED AS HAVING PASSED FROM DECEDENT. For purposes of this chapter and chapter 13, property includible in the gross estate of the decedent under subsection (a) shall be treated as property passing from the decedent.


author: MERRITT, Chief Judge.

text:
    Dale R. RIZZI, Petitioner, v. UNDERWATER CONSTRUCTION CORPORATION, et al., Respondents.
    No. 95-3034.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1996.
    Decided May 21, 1996.

      David A. Kelly (argued and briefed), Montstream & May, Glastonbury, CT, for Rizzi.
    Scott Wilson Williams (argued and briefed), Maher & Williams, Fairfield, CT, for Underwater Const. Corp., Liberty Mut. Ins. Co.

      Michael S. Hertzig, U.S. Dept, of Labor, Office of the Sol., Washington, DC, for Director, Office of Workers’ Compensation Programs, U.S. Dept, of Labor.
    Before: MERRITT, Chief Judge; CONTIE and BOGGS, Circuit Judges.
   MERRITT, Chief Judge.

This case raises the question whether a reservoir fed by a navigable waterway is itself part of the waterway under the Long-shore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950. Claimant, Mr. Rizzi, appeals the Benefits Review Board’s reversal of the Administrative Law Judge’s grant of benefits under the Act. He is an underwater diver who was on assignment in Ohio as an employee of the Underwater Construction Corporation. While in Ohio working at the Champion Paper Factory, Mr. Rizzi was severely injured on the job. He suffered a stroke which his doctors attributed to his diving.

The Administrative Law Judge granted benefits under the Act, holding that the reservoir or tank in which the defendant was working, which was located underneath the Champion Factory adjacent to the Great Miami River, was a navigable waterway so as to fulfill the jurisdictional requirement of the Act that the injury occur on a navigable waterway. The Administrative Law Judge also held that the claimant’s work was maritime employment.

The AL J held alternatively that even if the reservoir under the Champion Paper Factory did not qualify as navigable, the claimant could still be found to be a maritime employee within the so-called “twilight zone” between coverage under the Act for injuries or deaths upon the navigable waters of the United States (or an adjoining area) and the states’ concurrent jurisdiction over land-based injuries.

The Benefits Review Board reversed the ALJ, and held that claimant’s injury did not occur on a navigable waterway. Mr. Rizzi appeals from that reversal. We affirm the Benefits Review Board.

FACTS

Mr. Dale Rizzi, 33, is a Navy trained SCUBA diver who, upon his honorable discharge from the Navy in September 1986, was hired as a diver for the Underwater Construction Corporation located in Essex, Connecticut. The employer specializes in construction and repair of power plants, marinas, and other facilities located on the water, which require underwater access and the services of underwater divers. The claimant first worked in Connecticut, building steel drums in channels that ran underneath a power plant situated on the banks of a river. He was then assigned to work in Hamilton, Ohio at a Champion International plant which manufactured paper.

The Champion Plant was located on the banks of the Great Miami River, and water from the Great Miami was used in the paper making process. There was a 100’ x 100’ x 15’ reservoir or tank underneath the plant which was used in the paper making process. Water flowed into this reservoir through underwater intake and outtake pipes from the Great Miami River. The claimant’s job was to dive underwater and clear the silt and other debris which accumulated in the tank or reservoir using a cast iron pump. He spent an average of four hours a day in the water, and when not in the water, he monitored the other diver.

On the morning of the injury, the claimant began work at 7:30 a.m. Shortly after that, he developed a headache. He suspected carbon monoxide poisoning, but a cheek of his air supply revealed no problems. The headache worsened and he started to climb up the ladder to get out of the water but started to regurgitate while still wearing his air tight helmet, causing himself to inhale his own vomit.

He was transported to the hospital where he remained until May 1987. He was diagnosed with having suffered a stroke, caused by his work as a diver.

ANALYSIS

Navigable Waterway

The Benefits Review Board must affirm the findings of fact and conclusions of law of the Administrative Law Judge which are rational, supported by substantial evidence, and in accordance with law. O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965); 33 U.S.C. § 921(b)(3). In order to establish that he is entitled to benefits under the Act, the claimant must establish that he was injured while in a .place covered by the Act, and while in maritime employment as defined in the Act. Williams v. Director, Office of Workers Compensation Programs, 825 F.2d 246 (9th Cir.1987). To meet this so-called “situs” test, claimant could have shown either (1) that the tank or reservoir that he was in at the time of his injury was a navigable waterway of the United States, or (2) that the tank or reservoir adjoined a navigable waterway and that the tank or reservoir was used for loading, unloading, repairing, or building a vessel. Williams, supra; 33 U.S.C. § 903(a)..

A threshold requirement of navigability under the cases is the presence of an “interstate nexus” in order for a body of water to function as a continuous highway for commerce between ports. Lepore v. Petro Concrete Structures, Inc., 23 BRBS 403 (1990) (citing The Montello, 78 U.S. (11 Wall.) 411, 20 L.Ed. 191 (1871)). In addition, the waterway must be capable of floating logs, boats and rafts. Ne-Bo-Shone Ass’n, Inc. v. Hogarth, 7 F.Supp. 885 (W.D.Mich.1934), affd 81 F.2d 70 (6th Cir.1936).

The Administrative Law Judge correctly found that the Great Miami River, on which the paper plant in this case was located, was a navigable waterway. He went on to find that

... although Claimant was not directly in the Great Miami River, he was within a channel of water which flowed from the Great Miami River through this Champion International reservoir underneath its factory and then back into the [Great Miami River], Waters running through diversion tunnels have long been held to be still navigable waterways for purposes of the Longshore and Harbor Workers’ Act. See Morrison-Knudsen Company v. O’Leary, 288 F.2d 542 (9th Cir.1961) (an artificial tunnel used solely to divert the Snake River during construction of a dam was held to be navigable waters). Waterways which involved diversion from river channels into factories and back to the main river have also been considered navigable waterways under the Act. See C.J. Montag and Sons, Inc. v. O’Leary, 304 F.Supp. 188 (D.C.Or.1969) (A “tailrace” or “stream” formed by water returning to the Willamette River after it had been diverted for use in the manufacturing plant was held to be a navigable river).

J.A. at 24.

The Board rejected the ALJ’s reliance on the Morrison-Knudsen and C.J. Montag and Sons cases, noting that both cases involved the navigability of artificial waterways that could be navigated by boats or barges. In Morrison-Knudsen Co. v. O’Leary, 288 F.2d 542 (9th Cir.1961), four workers were killed in a diversion tunnel of the Snake River. The court held that the water in the tunnel, constructed to carry the main stream of the river during construction of the dam, remained a navigable waterway that could float boats or barges. In C.J. Montag and Sons, Inc., 304 F.Supp. 188 (D.Or.1969), a worker was killed in the tailrace of the Willamette River, which was a stream formed by water returning to the river after it had been diverted to two manufacturing plants. The court in that case held that the tailrace was navigable by barges up to 130 feet long and 28 feet wide operated in the tailrace.

The Board also based its reversal of the ALJ’s decision on Lepore v. Petro Concrete Structures, Inc., 23 BRBS 403 (1990). That case involved a claimant who was injured in a pontoon boat in a flume while removing a temporary support structure from below the concrete base laid for the construction of the Winter Garden building of the World Financial Center at Battery Park in New York City. The flume was a 60’ X 30’ channel, with landfill on the bottom, a concrete slab on top, earth at one end and seawall at the other end. The water in the flume was 20’ to 25’ deep, and it seeped in through the gravel and rock base. In Lepore, the Board held that since water seeped into the flume solely for the purpose of facilitating heating and cooling, and not for navigation, it was not a navigable waterway since it could not support commerce. Lepore at 406.

According to the Board, the facts of Mr. Rizzi’s claim are similar to those in Lepore. As in Lepore, the area which held water where the injury occurred was intended primarily for storage of the water for the heating and cooling system. Just as in Le-pore, the reservoir or tank at issue in this case was tantamount to being land-locked since no vessel could gain access to it due to the walls surrounding it. We agree with the Board that a navigable waterway ends where underground pipes and vents remove water from a river to a reservoir or tank for manufacturing or storage purposes. Otherwise, river water pumped into municipal reservoirs and similar facilities would continue to be viewed as navigable waters even though transportation is no longer possible. Like drains and small creeks, such reservoirs are too far removed from navigation to be any longer considered “navigable waterways,” even under a liberal construction.

The claimant argues that the decision of the Benefits Review Board inappropriately substituted its own factual findings for those made by the Administrative Law Judge, but we conclude that the Benefits Review Board’s decision was not premised upon the substitution of factual findings made by the ALJ, but rather was premised upon the fact finder’s misapplication of the law to the facts. The Board’s reversal of the ALJ’s decision and order rests upon its finding that the site of the claimant’s injury did not constitute navigable waters as covered by 33 U.S.C. § 903(a). There was no retrial of facts by the Board, nor was there any substitution of facts for the finding of the Administrative Law Judge.

Maritime Employee

In addition to establishing injury on actual navigable waters, a claimant may also establish coverage if his injury occurs in a landward area covered by Section 3(a) and his work is maritime in nature, bringing him within the definition of maritime employee in Section 2(3). See 33 U.S.C. §§ 902(3), 903(a). Section 3(a) provides that the injury must occur on the navigable waters of the United States “including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel.” 33 U.S.C § 903(a).

In its decision reversing the ALJ, the Board stated:

... in addition to not constituting “navigable waters,” the site at the paper factory where claimant was injured is not one of the enumerated sites in Section 3(a), and there is no contention that it is an adjoining area used for the maritime activity of loading, unloading, building, dismantling or repairing vessels. Therefore, we hold that claimant’s injury did not occur on a situs covered under Section 3(a) of the Act.... Accordingly, as the situs requirement is not satisfied in this case, we reverse the administrative law judge’s finding that claimant’s injury on January 20, 1987 is covered under the Act and the resultant award of benefits.

J.A. at 46.

We agree that the claimant’s injuries did not occur upon a navigable waterway, pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel as specified in 33 U.S.C § 903(a). The Board was therefore correct in finding as a matter of law that the claimant’s injuries failed to meet the jurisdictional requirements of the Act.

Twilight Zone

Mr. Rizzi also argued that his injury occurred in the “twilight zone” between state workers’ compensation and the federal Act. He claimed that where an injured claimant is not eligible for state compensation benefits, he may be afforded LHWCA coverage despite not meeting all of the technical requirements under the Act. See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360 (5th Cir.1995).

The Board did not address the claimant’s “twilight zone” argument, except in a footnote stating: “[i]n its brief to the Board, employer states that claimant received an award of benefits under Connecticut workers’ compensation law, which employer ultimately did not challenge.” J.A. at 46. Because the petitioner qualified for and secured workers’ compensation benefits under the Connecticut Workers’ Compensation Act, and because the petitioner has failed to meet the situs requirement for longshore jurisdiction, there is no justification for extending the Act’s jurisdiction beyond that mandated by the statute.

CONCLUSION

For the reasons discussed above, the Board was correct in reversing the judgment of the Administrative Law Judge awarding benefits to Mr. Rizzi under the Longshore and Harbor Workers’ Compensation Act. We therefore AFFIRM.

      . Section 903(a) provides:
      Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).