Take the Fifth

• Martinez v. Pompeo, 19-41041, appeal from S.D. Tex., designated for publication
  • per curiam (King, Graves, Oldham), immigration, Administrative Procedures Act
  • Affirming dismissal of suit by plaintiffs for issuance of U.S. passport to father, who claimed to be a U.S. citizen, and for issuance of immigrant visas to his wife and step-daughter. Father had conflicting birth certificates, one showing he was born in Mexico City in April 1965 and the other showing he was born in Eagle Pass, Texas, in June 1965. He applied for a U.S. passport in 2009 and 2014, which were both denied on the basis that he failed to prove his citizenship status; and in 2013, on the same basis, immigrant visa applications for his wife (whom he had married in 2004) and step-daughter were also denied. They filed suit in 2017 against a USCIS field director, the U.S. Secretary of State, and the U.S., seeking a declaration of his U.S. nationality under 8 U.S.C. § 1503(a) and challenging the denial of the passport and immigrant visas under the Administrative Procedures Act (“APA”).
  • The district court dismissed the APA claims, on the basis that the APA only provides relief if no other legal remedy is available, and that the § 1503 action for declaration of nationality provided the legal remedy. While the § 1503(a) claim was being litigated, the Fifth Circuit issued its opinion in Gonzalez v. Limon, 926 F.3d 186 (5th Cir. 2019), which held that, in cases with multiple denials of a citizenship-based application, the five-year statute of limitations for § 1503 claims began to run from the first denial. Accordingly, the district court here held that plaintiffs’ § 1503(a) claims were time-barred, since the denial of his first passport application was issued in 2011, six years before suit was filed. Plaintiffs did not challenge this ruling, but filed a motion to reinstate their APA claims on the basis that an adequate legal remedy no longer existed. The district court denied the motion.
  • The Court rejected plaintiffs’ appeal arguments that Gonzalez should not apply, and that the wife and step-daughter’s APA claims regarding their visa applications should not have been dismissed in the first place because they did not have an adequate legal remedy in § 1503; the Court held that, since the plaintiffs did not make these arguments in the district court, they could not raise them on appeal. The Court then held that, just because a non-APA claim (such as the § 1503 claim) was time-barred, that non-APA claim still presented an adequate legal remedy for purposes of barring an APA claim; that the plaintiff delayed bringing the non-APA claim until it was too late did not open up the APA back door for the time-barred claims.

• Texas League of United Latin American Citizens v. Hughs, 20-50867, appeal from W.D. Tex., designated for publication
  • Duncan, J. (Willett, Ho, Duncan), Ho, J., concurring; election law
  • Granting stay pending appeal, of district court’s order enjoining an October 1 emergency proclamation by Texas Governor Greg Abbott that limited locations for hand-delivery of absentee ballots to one location in each county.
  • On July 27, Governor Abbott issued a proclamation affecting November election procedures to account for coronavirus concerns. The July proclamation moved the start of early voting from October 19 to October 13, and changed the time allowed for hand-delivery of absentee ballots from only election day to any day after ballots were mailed out in mid-September up through election day. In addition to the hand-delivery option, Texans retained the ability to mail in absentee ballots. On October 1, in response to some Texas counties’ decision to provide multiple places for drop-off of hand-delivered absentee ballots, Governor Abbott issued an emergency proclamation limiting each county to only one drop-off location for hand-delivered absentee ballots.
  • Plaintiffs filed suit on October 2, challenging the October 1 proclamation as placing an undue burden on their right to vote under the First and Fourteenth Amendments and as a violation of the Fourteenth Amendment’s Equal Protection Clause. On October 9, the district court issued an order enjoining the October 1 proclamation’s restriction of one-drop-off per county for hand-delivery of absentee ballots.
  • On October 12, the Court issued this order granting a stay of the injunction pending appeal. The Court held that the Texas Secretary of State was likely to succeed on the merits of the appeal of the district court’s holdings on the voting-rights and equal-protection claims, and therefore did not reach issues ruled on by the district court as to plaintiffs’ standing, Ex parte Young, Purcell abstention regarding upsetting voting procedure expectations too close to an election, or Pullman abstention.
  • The Court held that the voting-rights claims are subject to Anderson–Burdick balancing, which balances the character and magnitude of the burden on voting rights against the State interests asserted as justification to impose the voting rules at issue. The district court had held that the burden on voting rights was between slight and severe, as the limitation to one voting drop-off location per county placed voters in a bind of choosing whether to subject themselves to public health risks related to the pandemic in a single drop-off location or to place their ballots at risk of not being delivered timely through the postal service. The Fifth Circuit panel, however, “strain[ed] to see how it burdens voting at all,” observing that the October 1 proclamation was merely a “refinement” of the July 27 order’s “expansion” of voting access by increasing the time for hand-delivery of absentee ballots from one day (election day) to forty days. “To be sure, the proclamation requires a single designated drop-off location per county during the expanded forty-day period. But that represents merely a partial refinement of the bounds of a still-existing expansion of absentee voting opportunities.” The Court then held that, even if it focused only on the October 1 proclamation by itself, the burden on voting would be “de minimis”–though the Court’s explanation of this de minimis-ness of the October 1 proclamation relied on a recitation of the other ways Texans could vote as provided for in the July 27 proclamation. As to the dilemma regarding reliance on the postal system, the Court then observed, “We cannot conclude that speculating about postal delays for hypothetical absentee voters somehow renders Texas’s absentee ballot system constitutionally flawed.”
  • The Court then held that Texas was likely to prevail on the merits of its countervailing interest in protecting election security and integrity, as “[i]ndeed, both the Supreme Court and our court have recognized that ‘mail-in voting’ is ‘far more vulnerable to fraud’ than other forms of voting.” (Citing Veasey v. Abbott, 830 F.3d 216, 263 (5th Cir. 2016) (en banc); Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 195–96 & n.12 (2008)). While “the district court demanded evidence of ‘actual examples of voter fraud’ justifying the centralization of mail ballot delivery locations,” the Court held, “Such evidence has never been required to justify a state’s prophylactic measures to decrease occasions for vote fraud or to increase the uniformity and predictability of election administration.”
  • As to the equal protection claim, the Court held that the district court was incorrect in concluding that ballot drop-off access was made more restricted depending on county lines. The Court noted that the one-drop-off restriction was uniform across all counties.
  • Judge Ho concurred “fully in Judge Duncan’s typically thoughtful opinion,” but noted he did so “only grudgingly.” Judge Ho agreed that the district court should not have “rewritten” Texas elections law, but that neither should have Governor Abbott, and so his concurrence was begrudging because he saw the stay of the district court’s order only reinstated one impermissible rewriting of elections law in place of another. Judge Ho took issue with Governor Abbott’s failure to call a special session of the Texas Legislature to deal with the elections security issue.

• Katembo v. Barr, 18-60770, petition for review of BIA order, unpublished
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying petition for review of denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Holding that, “regardless of whether or not Katembo could show that the harm he suffered rose to the level of persecution, … he has not shown that the evidence compels the finding that he suffered persecution on account of his actual or imputed political opinion. … [H]e did not adequately show that the threats and attacks he suffered were related or that the perpetrators were motivated by his actual or imputed political beliefs. … Rather, the IJ found Katembo was targeted because of his occupation as an election worker.” The Court found that the basis for asylum he had brought before the IJ was political persecution, not membership in a particular social group (i.e., election workers), so for any claim based on that ground he had not exhausted his administrative remedies. Court also held that Katembo could not show a likelihood of state-sanctioned or state-acquiesced torture upon his removal because the police had responded when he was attacked by supporters of a losing politician, even though the police declined to engage further when they found out he was an election worker.

• U.S. v. Biggers, 19-20817, appeal from S.D. Tex., unpublished
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting counsel’s motion to withdraw and dismissing appeal.

• Morris v. Graphic Packaging International, L.L.C., 19-30940, appeal from W.D. La., unpublished
  • per curiam (Higginbotham, Jones, Higginson), workers’ compensation
  • Affirming summary judgment in favor of employer defendant, finding employee plaintiff was a statutory employee and that the only remedy for his job-related injury was in workers’ compensation. Holding that an unsigned purchase order with a statutory-employer provision was a “written contract” for purposes of establishing a statutory employer relationship pursuant to Louisiana’s workers’ compensation statute. And, finding that the Louisiana workers’ compensation statute should be interpreted and applied liberally, the Court rejected the plaintiff’s argument that, while the use of the black liquor reclaim tanks was integral to defendant’s business, the construction of the tanks (which was plaintiff’s employment) was not.

• McGill v. BP Exploration & Production, Inc., 19-60849, appeal from S.D. Miss., unpublished
  • per curiam (King, Stewart, Southwick), toxic tort, expert witness
  • Affirming district court’s order granting Daubert motion to exclude plaintiff’s expert witness and summary judgment in favor of defendant. Plaintiff had invoked the Back End Litigation Option in the Medical Settlement Agreement arising from the BP Deepwater Horizon disaster, to bring a claim for Later-Manifested Medical Conditions arising from his work in clean-up and dispersal of the oil from the spill.
  • The Court held that the proposed plaintiff expert, Dr. Stogner, did not base his causation opinion on sufficient facts or reliable methodology. The Court noted that, “Although some of the studies Dr. Stogner relied on are consistent with the notion that Corexit and crude oil could cause respiratory harm, all have defects in their applicability. None support the conclusion that Corexit or crude oil cause the illnesses that McGill suffers from, and none provide conclusive findings on what exposure level of Corexit is hazardous to humans.” The Court also observed that “Dr. Stogner was unable to answer questions regarding how much time McGill spent scooping up oil, how, where, or in what quantity Corexit was used, how exposure levels would change once substances were diluted in seawater, or how McGill’s protective equipment would affect exposure.”
  • The Court also held that there was no error in the district court applying a more stringent toxic tort standard to analysis of BP’s summary judgment motion, rather than a general maritime law standard, since, without expert testimony as to causation, plaintiff could not meet either standard to show a genuine dispute as to the material fact of causation.

• U.S. v. Bell, 20-10005, appeal from N.D. Tex., unpublished
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting counsel’s motion to withdraw and dismissing appeal.

• U.S. v. Britt, 20-10126, appeal from N.D. Tex., unpublished
  • per curiam (Stewart, Graves, Higginson), sentencing
  • Denying IFP application and dismissing appeal as frivolous. Finding that prisoner was not eligible for a sentence reduction under 18 U.S.C. § 3582 because amendment of the Sentencing Guidelines did not alter the guidelines range for his underlying conviction.

• U.S. v. Ayala-Solorio, 20-10170, appeal from N.D. Tex., unpublished
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Granting summary affirmance of district court’s sentence, holding that defendant’s argument that the sentencing element of recidivism should have been an indicted element required to be proven beyond a reasonable doubt to a jury was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).

• U.S. v. De Anda, 20-20012, appeal from S.D. Tex., unpublished
  • per curiam (Davis, Stewart, Dennis), criminal, immigration
  • Affirming defendant’s conviction for unlawful presence in the United States. Court held that defendant’s argument that his prior removal did not satisfy the removal element of the crime because the notice to appear did not state the date or time of the removal hearing was foreclosed by United States v. Pedroza-Rocha, 933 F.3d 490, 497-98 (5th Cir. 2019), and Pierre-Paul v. Barr, 930 F.3d 684, 688-89 (5th Cir. 2019).

• U.S. v. Arreola, 20-40145, appeal from E.D. Tex., unpublished
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Affirming sentence, based in part on application of sentencing enhancement applied by district court for possession of a firearm while committing a narcotics offense. Court held that it could not overrule prior panel decisions that firearms are tools of the trade in illegal drug activity, without any intervening en banc or Supreme Court cases to the contrary; and that the district court did not commit clear error in finding that the possession of a firearm during the drug transaction by the defendant’s co-conspirator was reasonably foreseeable to him.

• U.S. v. Alvarado, 20-50083, appeal from W.D. Tex., unpublished
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming district court’s imposition of sentencing enhancement for possession of a firearm while committing a felony. Defendant had been arrested with a firearm and 51 grams of cocaine. “Alvarado’s unsupported speculation that he might have intended to consume rather than distribute all of the cocaine he possessed is unpersuasive and insufficient to demonstrate clear error.”