Halil Ozerden

On
June 24, 2019, President Trump nominated Halil S. Ozerden to the Fifth Circuit
Court of Appeals seat previously held by E. Grady Jolly in Mississippi.

Ozerden’s record on the bench suggests a strong pro-corporate bias, as he has repeatedly sided with special interests over the rights of consumers and workers. His opinions also display a disrespect for civil rights protections, a predisposition to protect prosecutors and police officers even amid serious claims of misconduct, and a tendency to condemn criminal defendants to extremely harsh sentences.

Introduction

On
June 24, 2019, President Trump nominated Halil S. Ozerden to the Fifth Circuit
Court of Appeals seat previously held by E. Grady Jolly in Mississippi.

Ozerden’s
record on the bench suggests a strong pro-corporate bias, as he has repeatedly
sided with special interests over the rights of consumers and workers. His
opinions also display a disrespect for civil rights protections, a
predisposition to protect prosecutors and police officers even amid serious
claims of misconduct, and a tendency to condemn criminal defendants to
extremely harsh sentences.

This
report highlights the particular cases that AFJ believes the Senate Judiciary
Committee needs to closely scrutinize, ones that raise serious concerns as to
whether Ozerden will be a fair-minded and non-biased jurist.

Biography

Ozerden is currently
a United States District Court judge for the Southern District of Mississippi
and has served in that role since 2007.

Among his most prominent decisions is Catholic
Diocese of Biloxi, Inc. v. Sebelius. The claim
challenged the Affordable Care Act’s provision requiring medical providers to
provide procedures that the providers believed violated their religious
beliefs. Ozerden dismissed the case without prejudice on the grounds that the
claim was not ripe since the Obama Administration was still addressing the rule
at issue. This ruling led far-right outlets like Breitbart
to condemn Ozerden’s nomination to the Fifth Circuit.

In addition, Ozerden’s citing
of binding Supreme Court precedent in this and other cases outraged right-wing
extremists. Kevin Daley of the Daily Caller wrote,
“In another decision troubling to conservatives — Jarrell v. Pearl River
County Sheriff’s Department — Ozerden approvingly cited several cases which
derived from the Supreme Court’s 1992 decision in Planned Parenthood v.
Casey, in which a fractured Court upheld the core of Roe v. Wade.”
Other conservative groups including the Judicial
Crisis Network and the First Liberty Institute
also have criticized Ozerden’s nomination.

Prior to becoming a judge, Ozerden was in private practice at the firm Dukes, Dukes, Keating & Faneca, P.A., first as an associate and then as partner. From 1998-1999, Ozerden clerked for Judge Eldon Fallon on the Eastern District of Louisiana. He received his J.D. from Stanford Law School in 1998 and his Bachelor of Science in Foreign Service (B.S.F.S.) from Georgetown University in 1989. Prior to starting law school, Ozerden served in the United States Navy for six years. 

Ozerden joined the ultraconservative Federalist Society – an outside group to which Trump has delegated important aspects of the judicial nomination process – in 2019.

Racial
Justice

Ozerden’s
decisions preventing employees who faced severe racial discrimination at work
from having their claims heard by a jury raise questions about his ability to
fairly apply civil rights laws. This is a critical requirement for any judge,
but is particularly important considering the diverse population in the states
in the Fifth Circuit.

In these cases, African-American workers at a shipyard sued their employer for a racially discriminatory and hostile work environment. Over 140 employees filed complaints about this shipyard company with the Equal Employment Opportunity Commission. Alleging a pattern of racial hostility and discrimination, many of the shipyard workers pointed to the presence of nooses found hanging in the shipyard in the 1970s, 1990s, and 2000s. One employee also reported the use of racist language, which Ozerden flippantly dismissed: “[The worker] testified that he heard the ‘N word’ used in two instances throughout his lengthy career at the shipyard” [emphasis added]. The workers were also forced to use restrooms covered in racist graffiti that referred to the KKK and other violent insinuations. While many of these cases were time-barred or otherwise procedurally precluded, Ozerden dismissed a couple claims because he did not consider the racial discrimination sufficiently severe or pervasive.

With
regard to the claims of one worker named Roger Johnson, a case in which Ozerden
granted summary judgment to the employer, Ozerden held that Johnson’s experience hearing the N-word at work could
not have been sufficiently severe or pervasive as to constitute a hostile work
environment because his supervisors directed this violent language toward other
black employees, but never Johnson himself. Ozerden also dismissed Johnson’s
allegation of seeing nooses on two different occasions, holding this was not
sufficiently “frequent” to support a hostile work environment claim. Among the
other factors Ozerden had to consider in the applicable balancing test was
whether the discriminatory conduct was sufficiently “physically threatening or
humiliating.” Ozerden did not find that the overtly violent and threatening
nature of seeing nooses in the workplace was a strong enough factor to overcome
what he considered insufficiently frequent occurrences.

Ozerden
also dismissed the timely claim of a hostile work
environment by another worker, Larry Rudolph. Rudolph testified that a
co-worker placed signs on a double water fountain: one naming the two Caucasian
employees and one that read “others.” While Rudolph interpreted the signs as
indicating racially segregated water fountains, Ozerden questioned his understandable
reaction: “Even assuming that these signs were indicative of racial animus,
Rudolph has not shown that Defendant failed to take prompt remedial action as
to this act” [emphasis added]. Rudolph also testified that graffiti on the
bathroom stalls read, “You don’t have to use a rope to kill a n*****. There’s a
truck and chain.”  Considering this
evidence, Ozerden held, “Rudolph has not shown that the totality of the properly
considered alleged acts were physically threatening or humiliating, rather than
merely offensive utterances.”

Workers’
Rights

Ozerden
has repeatedly sided with corporations over the rights of all workers, often
preventing them from even fully litigating their cases.

In
EEOC v. Rite Way Service, Ozerden prevented Mekeva Tennort, a cleaning employee
who had corroborated a colleague’s sexual harassment complaint against a
supervisor and was subsequently fired, from having her Title VII retaliation
claim decided by a jury. Tennort told her Rite Way manager what she saw—that
Willie Dean Harris “act[ed] like he was slapping [her colleague’s] behind,
saying ‘ooh wee’” and that when Harris later reprimanded her colleague for
having her phone in her back pocket, he explained that he noticed the phone was
there because, “I’m a man. I’m going to look. They tight, her pants are tight.”
Harris, the named harasser, was then transferred to a different location.
Tennort’s new supervisor, however, was Harris’s brother-in-law. He gave Tennort three warnings for
poor job performance—her first series of reprimands since she started the
job—in five weeks. Rite Way then fired her. Ozerden dismissed 
Tennort’s case on summary judgment, holding that Tennort did not engage
in any protected activity under Title VII because participation in an internal
investigation was insufficient. He further held that the “single comment” by
Harris “sporadically or in casual conversation” could not give rise to an
“objectively reasonable belief” that the comment amounted to an unlawful
employment practice. The Fifth Circuit panel, which included a Bush-nominated
judge, overturned Ozerden’s decision.

The Fifth Circuit also overruled Ozerden when he granted summary judgment to an employer who was being sued by post-Hurricane Katrina emergency restoration workers for not paying overtime pay. Ozerden held that the workers were not covered by the Fair Labor Standards Act because they were independent contractors. The Fifth Circuit panel, which included two Bush-nominated judges, disagreed. Overturning Ozerden’s attempt to dismiss the workers’ claims without trial, the court opined: “Although there are facts that clearly weigh in favor of independent contractor status…these facts are not sufficient to establish, as a matter of economic reality, that [the emergency restoration workers] were in business for themselves during the relevant time period.”

Criminal
Justice

Ozerden’s record on criminal justice as a district judge displays an anti-defendant bias as well as lenience for police abuse directed at suspects and incarcerated persons. He has been overturned by the Fifth Circuit several times, including for his refusal to hold an evidentiary hearing on a defendant’s ineffective assistance of counsel claim when the defendant’s attorney failed to object when the government allegedly did not comply with its side of his plea agreement. In reversing Ozerden’s decision, James Ho, a Trump-nominated judge, wrote, “Because there is some indication that the government did not discharge its burden, [Ozerden] should not have denied relief without inquiring further or holding an evidentiary hearing.” Ho was joined in his opinion by two other Republican-nominated judges.

Ozerden’s
opinion imposing unexplained and irrelevant special
conditions of drug and alcohol testing and treatment for a defendant’s
supervised release was also overturned by three Republican-nominated Fifth
Circuit judges “in light of the degree of the district court’s error and [the
defendant’s] lack of substantial criminal history.”

In
2017, Ozerden prevented a victim from bringing most of his
claims to trial after a private prison guard allegedly sexually assaulted him
and his cellmate. J.M., the victim bringing the suit, alleged that the private
prison was aware of previous sexual assaults by the rapist. In fact, a year
before Ozerden’s decision, the prison, Walnut Grove Correctional Facility, shut down—ostensibly due to budget cuts but
following numerous reports of onsite violence and abuse. A 2012 Department of
Justice report concluded, “[Walnut Grove] is deliberately
indifferent to staff sexual misconduct and inappropriate behavior with youth.
The sexual misconduct we found was among the worst that we have seen in any
facility anywhere in the nation.” Despite this background information, Ozerden held that the victim failed to show an official custom or
practice of failing to protect inmates from sexual abuse. Ozerden specifically
held that seven prior incidents were insufficient to hold the private prison operator
liable because they involved “different [private prison] employees and
different inmates, and the vast majority are not sufficiently factually
similar.”

While sitting on the Fifth Circuit, Ozerden voted to overturn an opinion that allowed a suit against a sheriff to proceed to a jury, in a case in which the sheriff’s employees allowed a man detained in their jail to die slowly of a gastrointestinal hemorrhage. When he was booked for pre-trial detention, Jason Brown complained that he felt unwell, “repeatedly vomited what appeared to be blood,” and asked to be sent to the emergency room. Over the next 55 hours, Brown suffered and died, while the jail’s medical staff did not contact the supervising physician. In this suit for failure to train and supervise jail employees, Ozerden joined in reversing the district court, finding there was insufficient evidence of the sheriff’s deliberate indifference or objective unreasonableness to the medical needs of detainees. As an attorney, Ozerden represented the Harrison County’s Sheriff’s Department, defending the sheriff against multiple wrongful death claims.

In
Estate of Boyd v. Pike City, Ozerden held that a police officer
who fired six shots and killed
a man fleeing on an ATV was entitled to qualified immunity protecting him from
legal action. Even though there was a factual dispute as to whether the man’s
aiming of the ATV could have put the officer in fear for his life, Ozerden did
not allow the claim of excessive force to go to trial.

Ozerden,
sitting by designation on a Fifth Circuit panel, reversed a decision denying
qualified immunity to police who withheld exculpatory evidence in violation of the standard set forth
in Brady. The district court held that qualified immunity did not
protect the detectives who allegedly pressured a witness into implicating the
criminal defendant and later ignored that witness’s retraction of that
identification. Ozerden disagreed.

A
2015 study found that among the six judges in the
Southern District of Mississippi, Ozerden was ranked as the second harshest
judge in applying lengthy sentences, averaging 58.1 months. He was also the
second harshest judge regarding sentencing time for drug crimes, imposing an
average sentence of 9.2 years.

Immigration

In 2016, Ozerden sat with the Fifth
Circuit to rule
against eight immigrant women who were sexually assaulted while
detained in United States Immigration and Customs Enforcement (ICE) custody.

The case originated in Williamson
County, Texas after the county received a contract from ICE to operate T. Don
Hutto detention center. The county later subcontracted their management of the
detention facility to Corrections Corporation
of America (CCA) – the United States’ oldest and largest private
prison corporation, infamous for widespread abuses such as violence against
detainees, riots, and inhumane hygienic and safety conditions.

The eight women were sexually assaulted
during transports from the detention facility to airports or bus stations by a
single CCA employee. Per ICE rules, the transports were required to have at
least one guard who is the same sex of the detainee being transported for
safety purposes. The plaintiffs
argued that the officials “understood that violations of ICE’s transport policy
could result in detainees’ sexual assault and knew of some history of sexual
assault at the detention center.” Despite this, CCA admittedly violated
this rule by repeatedly transporting women with one male guard – while
recognizing how doing so could elevate the risk of sexual assault – and neither
the contracting county nor ICE monitored the situation closely enough to
identify and stop the violation of this policy.

Ozerden and his colleagues on the Fifth
Circuit ruled that despite being assaulted in ICE custody by a subcontractor
operating the ICE facility, the women could not bring claims against either the
county or the federal government because of the private corporation’s role as a
subcontractor. There was no dispute over whether the employee committed the
assaults, as he had pled guilty to state and federal charges.

Williamson County terminated
its contract with both ICE and the private prison corporation operating the T.
Don Hutto facility in 2018, after widely publicized reports of widespread sexual
assault, abuse,
and lack
of medical care of the women detainees.

This ruling is especially alarming
during a time when ICE detention facilities and the subcontractors who operate
them are regularly being exposed for committing horrific human rights abuses,
including sexual
assault, sexual and physical abuse against children,
and the
denial of basic necessities,
like toothbrushes and soap, to detainees.

Consumer
Protection

Ozerden
prevented a child’s mother from suing a football
helmet manufacturer when the ninth grader became partially paralyzed after making
a tackle in a football scrimmage while wearing the manufacturer’s helmet. The
Fifth Circuit overturned Ozerden’s decision, holding that the
paralyzed child’s mother had sufficient evidence to argue the helmet had a
design defect. It chided Ozerden’s decision: “[W]here an opinion about defect
is based on a perfect condition product that is straight-from-the-manufacturer
and that opinion applies to all potential products that could have caused the
injury, there seems no basis to erect a bar at the summary judgment phase.”

Conclusion

Halil
S. Ozerden’s record contains troubling opinions he has written as a district
court judge. His record on criminal justice is deeply concerning. In addition,
Ozerden often denies workers and consumers their day in court, granting summary
judgment before they can hold companies accountable through trial. In one
instance, the Fifth Circuit reprimanded Ozerden for this tendency: “With due
respect to the district court, its efforts to streamline this case resulted in
a premature disposition.”

AFJ urges senators to closely scrutinize Ozerden’s record before considering elevating him to a lifetime seat on a higher federal court.