Dennis, J. (Stewart, Dennis, Willett), Willett, J., dissenting; abortion law
Affirming district court’s judgment permanent injunction against the enforcement of Texas Senate Bill 8 (“SB8”) and its requirement that “a woman to undergo an additional and medically unnecessary procedure to cause fetal demise before she may obtain a dilation and evacuation (D&E) abortion, the safest and most common method of second trimester abortions,” as facially unconstitutional under the Fourteenth Amendment’s Due Process Clause by unduly burdening a woman’s constitutionally protected right to obtain a pre-viability abortion.
The Court started with a recognition of Roe‘s foundational premise: “Since the Supreme Court’s landmark decision nearly fifty years ago in Roe v. Wade, 410 U.S. 113 (1973), it has been clear that the Fourteenth Amendment guarantees a woman’s right to choose to undergo a previability abortion.” The Court then summarized the balancing analysis put forward in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992): “It protected, on the one hand, a woman’s right to ‘mak[e] the ultimate decision to terminate her pregnancy.’ Casey, 505 U.S. at 879. On the other hand, it recognized that the state may enact previability regulations designed ‘to further the health or safety of a woman seeking an abortion’ or ‘to express profound respect for the life of the unborn’ so long as those regulations do not create ‘a substantial obstacle to the woman’s exercise of the right to choose.’ Id. at 877-78.”
The Court then looked to whether the Supreme Court’s most recent decision on abortion restrictions altered the Casey balancing test: “[I]n June Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103, 2114 (2020)[,] … a 4-1-4 Court invalidated a Louisiana law that imposed an admitting-privileges requirement on abortion providers because the law imposed an undue burden on a woman’s right to obtain an abortion. Id. at 2112-13. The four Justice plurality applied the balancing approach elucidated in Whole Woman’s Health, weighing the statute’s asserted benefits against its burdens. See id. at 2121-32. In a solo opinion concurring in the judgment, Chief Justice Roberts rejected the balancing test, stating that the undue burden test requires looking only to the burdens of an abortion regulation. See id. at 2136-37 (Roberts, C.J., concurring in the judgment).” After having ordered supplemental briefing by the parties as to whether June Medical Services altered the test the Court should apply here, the Court rejected the Texas state defendants’ argument that Chief Justice Roberts’ narrower formulation had become the governing standard, agreeing with the plaintiffs that “the [June Medical Services] Court’s split decision supplies no such precedential rule on the undue burden test.” Applying the analytical framework from Marks v. United States, 430 U.S. 188 (1977), the Court held that “the [June Medical] plurality’s and concurrence’s descriptions of the undue burden test are not logically compatible, and June Medical thus does not furnish a controlling rule of law on how a court is to perform that analysis.” (The Court recognized that the Eighth Circuit has reached the contrary conclusion as to whether Chief Justice Roberts’ concurring opinion provides a controlling legal standard).
The Court began its analysis under the balancing test by noting that the State’s formulation of the burdens of SB8 as allowing for multiple “alternative” procedures for causing fetal demise was subject to a “fundamental flaw”: “Fetal-demise procedures are not, by definition, alternative procedures, because a patient who endures such a procedure must still undergo the entirety of a standard D&E. Instead, fetal-demise procedures are additional procedures. Additional procedures, by nature, expose patients to additional risks and burdens. No party argues that these procedures are necessary or provide any medical benefit to the patient.” (Internal quotation marks and citations omitted). The Court then analyzed the three procedures of fetal demise proposed by the State–injecting digoxin into the fetus or amniotic fluid, injecting potassium chloride directly into the fetal heart, and transecting the umbilical-cord–and found no clear error in the district court’s fact-findings that each of these procedures entailed unnecessary and severe risks, unreliability, and potential for health complications for the mother.
Summarizing its findings regarding the burdens imposed by SB8, the Court held, “Under the statute, all women seeking a second trimester abortion starting at 15 weeks LMP would be required to endure a medically unnecessary and invasive additional procedure that provides no health benefit. The law increases the duration of what otherwise is a one-day D&E procedure. For most women, the length of the procedure would increase from one day to two, adding to the costs associated with travel, lodging, time away from work, and child care. This delay would be particularly burdensome for low-income women, many of whom must wait until the second trimester to seek an abortion because of the time needed to obtain funds to pay for the procedure. SB8 also forces abortion providers to act contrary to their medical judgment and the best interest of their patient by conducting a medical procedure that delivers no benefit to the woman. And without substantial additional training, the State’s proposed fetal-demise methods are not feasible for any physician other than subspecialists in the high-risk field of maternal-fetal medicine.”
The Court then turned to the other side of the Casey balance, and examined the State’s suggested interests and benefits of SB8. The Court observed that, “[b]ecause some may sincerely believe that requiring fetal demise before the D&E procedure advances respect for potential life, we assume without deciding that SB8 provides a limited benefit in this respect.” The Court then rejected the State’s argument that SB8 advances the State’s interest in advancing ethics in the medical profession: “Whatever SB8 arguably may do to advance the State’s interest in the medical profession is negated by the Act’s forcing of physicians to act contrary to what is best in their medical judgment for their patients.” The Court also rejected the State’s argument that SB8 advances the interest of ensuring women are fully informed about the D&E procedure, noting that SB8 does not require the woman to be fully informed about the fetal-demise procedures. The Court also held that the State’s argument for aligning its laws with those of the international community was not a valid State interest where the countries whose laws were being compared to did not provide the same constitutional protections as ours. The Court also found no merit in the State’s urged interest that SB8 prevents fetal pain, as nothing in the record supported that fetus’s experience pain prior to 22 weeks LMP, nor was their support that the fetal demise procedures would themselves cause less fetal pain.
The Court then concluded its balancing analysis by holding, “Weighing SB8’s significant burdens upon female patients against its nonexistent health benefits and any other limited benefits it may actually confer, it is clear that the law places a ‘substantial obstacle in the path of a woman seeking’ a previability abortion.”
Finally, the Court upheld the district court’s finding of facial unconstitutionality, noting that it was “without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent”; that “[t]he State offers no such construction”; and that “no such construction is possible because … SB8 operates as an undue burden in all of its applications where it is a relevant restriction.”
Judge Willett’s dissent is noted as being forthcoming.
per curiam (Owen, Davis, Southwick), criminal, sentencing
Affirming sentence of a total of 125 months (concurrent sentences on three counts) where guidelines range was 84 to 105 months, based on an upward variance based on a criminal history score. Court held that district court did not err in the calculation of defendant’s criminal history points. Court also held that district court did not impose a substantively unreasonable sentence in light of the district court’s criminal history findings and its findings that the sentence was justified by the nature and circumstances of the offense and the need to adequately deter criminal conduct and provide protection to the public.
Empower Texans, Inc. v. Geren, 19-50577, appeal from W.D. Tex., designated for publication
Southwick, J. (Elrod, Southwick, Haynes), mootness
Vacating District Court’s dismissal of suit on grounds of legislative immunity, holding the suit to be moot, and remanding with instructions to dismiss as moot.
Plaintiffs had filed suit against the Chairman of the Committee on House Administration of the Texas House of Representatives for his denial of their applications for media passes to cover the floor of the House (plaintiffs’ publication had regularly given the Chairman an “F” rating on their fiscal responsibility scorecard). The District Court had dismissed their suit on the basis of legislative immunity. However, the Court of Appeals noted that Plaintiffs had failed to take advantage of available procedures to move their relief forward more quickly, including by waiting to seek a preliminary injunction for several months after filing suit, then not seeking any sort of injunctive remedy pending appeal. Accordingly, the Fifth Circuit held that, when the Texas Legislature’s regular session had ended, and so much time had passed that a special session in the same term became unlikely, there was no basis to provide extraordinary relief from the operation of the mootness doctrine.
The Court held, “In summary, exceptional circumstances justifying a court’s moving beyond actual mootness will be less likely found when the party seeking review failed to utilize the procedures that had been available. A party seeking to continue litigation after time has run out should not be allowed to do so when it failed to use the time it had.”
Willett, J. (Willett, Ho, Duncan), prisoner suit, Eighth Amendment, PLRA
Granting stay pending appeal of permanent injunction regarding Texas Department of Criminal Justice’s measures to contain COVID-19 outbreak at state-run prison.
While more than 500 prisoners at the Wallace Pack Unit had contracted the virus, and 20 had died, the Court noted that the cases at the unit had fallen from 172 in late June to only 4 cases in late September. “TDCJ’s response, albeit imperfect, did not amount to deliberate indifference under the Eighth Amendment.” The Court also held that the district court had erred in applying a “special circumstances” analysis to the “availability” exception to the administrative exhaustion requirement of the Prison Litigation Reform Act. Because it was undisputed that the plaintiffs had not complied with the administrative exhaustion requirement of the PLRA, the Court held that this was an additional basis as to which the state parties were likely to succeed on the merits of their appeal: “The district court lamented that TDCJ’s grievance process was lengthy and unlikely to provide necessary COVID-19 relief. By all accounts, the process was suboptimal. But it was available, and Plaintiffs were required to exhaust it before bringing this suit.”
per curiam (Owen, Barksdale, Duncan), criminal, sentencing, sufficiency of evidence
Confirming defendants’ convictions, but vacating two defendants’ sentences and remanding for reformation.
Defendants had been convicted of health care fraud related to their operation of related home health care businesses. The Court held that there was sufficient evidence to support the convictions of each defendant. The Court also held the district court did not abuse its discretion in denying one defendant’s Rule 14 motion to sever his trial from the remaining co-conspirators. The Court also held that the district court did not err in relying on the presentencing report to calculate the amount of restitution ordered.
The Court ordered the sentence of one of the defendants to be vacated and remanded insofar as it left one co-defendant’s name off the order of which co-defendants were to be jointly and severally liable for the restitution order; and vacated another defendant’s sentence to the extent his restitution order included restitution for a date-range broader than the dates of his participation in the conspiracy, and to the extent that the orally announced supervised-release condition that all restitution be paid before 60 days prior to the end of the supervised-release term was not in the written notice.
per curiam (King, Stewart, Southwick), injunction, civil enforcement, criminal contempt
Dismissing appeal in part as moot, affirming order finding violation of civil injunction, and vacating imposition of $50,000 award as relief for violation of injunction.
An employee of defendant Vinmar had been an employee at plaintiff Ravago; when he left Ravago, he signed a non-solicitation agreement prohibiting him from recruiting any Ravago employees for four years. When he nevertheless did try to recruit Ravago employees, Ravago obtained an injunction against him from doing so. Subsequently, the former employee, now an employee at Vinmar, allegedly tried to recruit another Ravago employee at a trade show. Vinmar filed a motion for contempt against the employee and Vinmar, which the district court granted. The district court ordered the employee to pay $50,000 plus attorneys’ fees, keep a log of daily activities and communications, and extended the period of non-recruitment by three months beyond the original agreement.
The Court held that it had jurisdiction to review the contempt order because, while civil contempt orders are ordinarily not appealable, the order here–particularly the $50,000 fine–was punitive in nature and therefore should be treated for appellate jurisdiction purposes as a criminal contempt order. “At first blush,” wrote the Court, the fine appeared to be compensatory, and thus civil, in nature, because the fine was to be paid directly to Ravago and the district court expressly referred to the proceeding as “civil.” However, there was no rational relation between the amount of the fine and any actual economic injury to Ravago (indeed, the employee who was attempted to be recruited continued to work at Ravago), and neither the district court’s order nor the parties’ briefing attempted to explain how the fine was remedial, and therefore truly compensatory, in nature. Where it was not compensatory, the fine could only be considered civil if it were accompanied by an “opportunity to purge,” which was not provided by the district court here. The Court observed that similar no-purge/non-compensatory fines, even as small as $50, would be characterized as criminal in nature.
The Court held that the Due Process safeguards required for a criminal sanction hearing–which “range from sufficient notice that the proceedings are of a criminal nature to proof of guilt beyond a reasonable doubt, and the involvement of an independent prosecutor”–were not provided to the former employee here. In addition, the Court held that the $50,000 fine was a “serious” rather than “petty” penalty, as to which the former employee should have been afforded a trial by jury. Finding that the district court’s errors in failing to provide such safeguards were plain and affected the former employee’s substantial rights, the Court vacated the $50,000 fine.
As to the requirements to extend the non-solicitation period by three months and to engage in increased recordkeeping, because the time period of those requirements had lapsed, the Court dismissed the appeal as to those sanctions as moot.
per curiam (Davis, Stewart, Dennis), habeas corpus, mootness
Dismissing as moot district court’s denial of petitioner’s federal habeas petition under § 2241. Because prisoner had been released during the pendency of his appeal, the relief he was requesting could no longer be effected.
per curiam (Barksdale, Elrod, Ho), search and seizure, warrantless search
Affirming the district court’s denial of motion suppress firearm used to charge defendant with being a felon in possession of a firearm. Finding no clear error in the district court’s denial of the motion to suppress, where searching officer had heard scuffling noises behind an apartment door; apprehended suspect had just yelled toward the apartment “Cops! Cops! Cops!”; searching officer had researched suspect and knew that he was living with confederates in an armed and militant splinter organization; and so searching officer, once additional backup arrived, conducted a protective sweep of the apartment, revealing multiple firearms that were then the basis of a search warrant.
per curiam (Davis, Stewart, Dennis), arbitration, sanctions, frivolous appeal
Affirming confirmation of arbitral award in favor of defendant car dealership, denying plaintiff’s request that the Court of Appeals deny a still-pending motion for sanctions filed in the district court, and denying defendant’s request for fees and costs in the appeal.
Plaintiff had purchased a vehicle from the dealership, then totaled the vehicle three days later. She brought suit, bringing various claims based on her assertion that the dealership had represented it would insure the vehicle; in the meantime, the parties entered into an arbitration where the arbitrator found in favor of the dealership, awarding the cost of the vehicle, minus the down payment plaintiff had paid and the amount the dealership was able to get in salvage value, plus attorneys’ fees and costs of almost $21,000. The dealership then intervened in the lawsuit and brought a counter-claim to confirm the arbitral award, which the district court granted.
The Court rejected plaintiff’s arguments that the arbitrator had exceeded her authority in awarding attorneys’ fees, or that the arbitrator had abused her authority in her weighing of the evidence.
The Court held that it could not enter an order denying the dealership’s motion for sanctions filed in the district court, as the district court had not yet ruled on that motion. It also denied the dealership’s motion for an award of fees and costs related to the appeal because, while plaintiff’s chances of success had been slim, they were not “frivolous.”
per curiam (King, Smith, Wilson), criminal, sentencing, search and seizure
Affirming sentence and conviction. Court held that district court did not err in denying motion to suppress, that the arresting officers’ use of drawn weapons, handcuffs, physical force, and verbal commands were not unreasonable in light of the information known to the officers about defendant’s violent criminal history and possibility defendant may be armed. Court also rejected defendant’s argument that district court erred in including a state conviction in his criminal history points for purposes of sentencing where he was challenging that conviction. on collateral review; Court held that it lacked jurisdiction to review that argument because defendant had failed to attempt a showing that he had a substantial likelihood of success on that collateral challenge in Texas state courts.
per curiam (Owen, Dennis, Ho), criminal, sentencing
Affirming sentence, Court found no clear error in the district court’s factual findings supporting application of sentence enhancements for using a sophisticated means to commit the offense, being an organizer of the criminal activity, or abusing a position of personal trust; or for relying on the facts in the presentencing report. Finally, the Court held there was no error in the district court’s applying both the enhancements for an aggravating role and an abuse of trust, as the Guidelines did not provide that application of both would constitute a prohibited double-counting.
Affirming dismissal of plaintiff’s suit, brought after he was arrested for disturbing the peace. Plaintiff and two other friends had been summoned out to the street by two police officers who were looking for the driver of a vehicle they had observed speeding through the neighborhood. One of the friends admitted he had been driving the vehicle in question but that it had not been during the time period suggested by the officers. While the officers went back to their car to look at the dashcam video, they told plaintiff and his two friends to remain where they were. Plaintiff then approached the officers, and did not desist when asked to. Officers arrested him for disturbing the peace. He brought suit for violations of his First and Fourth Amendment rights. The district court dismissed his suit, finding the officers had probable cause for the arrest.
The Court held that the record supported the district court’s findings that the officers had probable cause for an arrest for disturbing the peace; and rejected plaintiff’s argument that the officers did not know the elements of the crime, holding that probable cause is an objective standard that does not require inquiry into the officers’ subjective state of mind. The Court also rejected as an incorrect statement of Mississippi law the plaintiff’s argument that he could not be arrested for disturbing the peace while on private property. Although the defendants did not rebut this argument in their appellee brief, the Court observed, “While as a general matter we do not recommend that appellees disregard their opponents’ arguments, their doing so does not require us to countenance an inaccurate statement of the law.”