Take the Fifth

Designated for publication

• In the Matter of: Ward, 18-10469, appeal from N.D. Tex.
  • Owen, C.J. (Owen, Clement, Ho), bankruptcy, timeliness
  • Affirming district court’s judgment that the bankruptcy court did not err in finding creditors’ complaint seeking denial of debtor’s discharge was timely and in entering an order denying discharge under 11 U.S.C. § 727(a)(4)(A) and (a)(5).
  • Debtor originally filed a Chapter 7 bankruptcy petition in the Eastern District of Texas, which set an initial creditors meeting for May 30, 2014 and a deadline to object to the petition for July 29, 2014. Prior to the May 30 meeting setting, an agreed motion to transfer the proceedings to the Northern District of Texas was filed; the May 30 meeting did not occur and the matter was transferred to the N.D. Tex. on June 5, 2014. The N.D. Tex. set a new creditors’ meeting for July 22, 2014, and a new deadline for filing objections of September 22, 2014. Subsequently, the bankruptcy court granted timely filed motions for extensions of time to object, through May 1, 2015, and the trustee and creditors filed the complaint seeking dismissal of discharge on April 27, 2015. The bankruptcy court affirmed that the complaint was timely, and denied debtor’s discharge. The district court affirmed.
  • The Court of Appeals concluded that the bankruptcy court had the equitable power under 11 U.S.C. § 105(a) to correct any mistake it had made in changing the date of the first creditors’ meeting following the transfer. The Court noted that both bankruptcy rules 4004(a) and 4007(c) “require a bankruptcy court to give creditors notice of the deadline for filing objections.” Then the Court held, “Assuming, without deciding, that this was contrary to the letter of Rule 4004 even when a case has been transferred to another district, the parties were justified in relying on the Bankruptcy Court’s actions. Neither party brought the matter to the Bankruptcy Court’s attention prior to the original deadline for filing objections to discharge. Had they done so, the Bankruptcy Court would have been authorized under the Rules to extend the time for filing an objection to discharge. Under § 105, the Bankruptcy Court was empowered to craft an appropriate solution to correct its own error, if any.”
  • The Court recognized that rules 4004(a) and 4007(c) typically must be interpreted strictly and in favor of the creditor, but that where the parties were not faced with their own error regarding the bar date, but with an affirmative order of the bankruptcy court, the bankruptcy court had the equitable power to correct its own error: “The Bankruptcy Court was entitled to correct its own error when confronted with its own mistake.”
  • On the merits, the Court then held that there was no clear error in the bankruptcy court’s denial of discharge on the basis of false oaths by the debtor as to certain material facts and on the basis that the debtor failed to satisfactorily explain the loss of assets.

• Pool v. City of Houston, 19-20828, appeal from S.D. Tex.
  • Costa, J. (Graves, Costa, Engelhardt), standing, mootness, jurisdiction
  • Reversing district court’s dismissal of suit challenging Houston’s city charter’s requirement for circulators and signers of referenda petitions to be residents of Houston and registered to vote.
  • Court characterized Houston’s charter’s “qualified voter” requirement a “zombie law,” as it contains a requirement identical to one that had been struck down by the Supreme Court as unconstitutional in Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999). Here, the plaintiffs (referenda petition circulators) had brought suit against Houston, seeking to enjoin enforcement of the “qualified voter” restriction. The district court had granted a TRO of one week to cover an immediately occurring petition drive, but after the expiration of that week dismissed plaintiff’s complaint, finding that they could not demonstrate a sufficient interest to circulate future petitions, in order to show a sufficient injury to support permanent injunctive relief.
  • Examining standing, the Court of Appeals held that plaintiffs had clearly shown an interest to circulate future petitions, as one of the plaintiffs had a documented and deep history in circulating referenda petitions and even had a company that specialized in hiring petition circulators. The Court of Appeals then held that there was a sufficient threat of future enforcement of the “qualified voter” requirement, as at the time plaintiffs filed suit–twenty years after Buckley–Houston’s petition form still obligated signers to swear they were “qualified voters of the City of Houston,” and that, indeed, in 2014 the City had sought to depose petition signatories (including one of the plaintiffs here) as to their qualifications under the form’s requirements in a separate petition. “This zombie shows signs of life.”
  • Examining mootness, the Court held that a revision of the City’s petition form after the initiation of this lawsuit, to add an “editor’s note” authored by the City’s legal department that “the City will accept petitions circulated by individuals that are not residents of the City or are not registered to vote in the City,” did not render the lawsuit moot. As an initial matter, this editor’s note did not affect standing, because the Court recognized that standing analyzes the right of the plaintiffs to being their action at the time the lawsuit was initiated. As to mootness under post-filing conduct, the Court found that it was not clear on the record that the City’s legal department had the authority to make a formal policy change on behalf of the City, and that anything short of a formal policy change may be nothing more than litigation posturing. Accordingly, the Court reversed the dismissal of plaintiff’s suit and remanded to the district court for further proceedings.

• Arnold v. Williams, 19-30555, appeal from M.D. La.
  • Elrod, J. (Barksdale, Elrod, Ho), § 1983, qualified immunity, search and seizure
  • Affirming in part district court’s dismissal under Rule 12(b)(6) and/or Rule 56 of various claims by plaintiff arising from sheriff deputy’s detention of plaintiff, but reversing dismissal of claim for unreasonable search and remanding to district court for consideration of qualified immunity under that claim.
  • Plaintiff and his brother had been living in a garage apartment above the carport of a house where they were doing work for the homeowner. After being confronted by a sheriff’s deputy in the middle of the night about an open door to the house, plaintiff had awakened the homeowner, who confirmed the identities of plaintiff and his brother and that they lived in the garage apartment. The deputy was not satisfied with the homeowner’s explanation, and tried to grab plaintiff, who then ran toward the backyard and attempted to climb over the back fence, but instead fell over the fence and dislocated his shoulder. He was arrested and held for twenty days before all charges were dropped for lack of probably cause. Plaintiff then brought suit against deputy alleging § 1983 claims for illegal search and seizure in violation of the Fourth Amendment, false arrest and false imprisonment, malicious prosecution, and violation of substantive and procedural Due Process under the Fifth and Fourteenth Amendments; and Louisiana tort claims alleging negligence and intentional infliction of emotional distress. The district court dismissed the § 1983 claims and the intentional-infliction-of-emotional-distress claim under Rule 12(b)(6), and then dismissed the negligence claim on summary judgment.
  • The Court held that plaintiff sufficiently alleged an unreasonable search claim, pleading the two elements with the requisite particularity: (i) deprivation of a federal right; and (ii) action under color of state law. The Court held that plaintiff’s allegations that he was awoken by the sound of the deputy outside his door, searching around in the carport (“the curtilage of his home”), and then the deputy’s demand for his name and identification, constituted a “search” (though, conversely, not a “seizure”). The Court also held, however, that there was not a “seizure” when the deputy reached to grab for plaintiff. “He simply does not allege actual physical force.” So the Court held that the district court erred in dismissing the unreasonable search claim. The Court declined to reach whether plaintiff sufficiently alleged that qualified immunity should not apply, as the district court had not reached that issue in the first instance, so the Court remanded with instructions to the district court to determine the applicability of qualified immunity to that claim.
  • The Court then found no error in the district court’s dismissal on Rule 12(b)(6) and Rule 56 grounds of the remaining claims asserted by plaintiff.

• Nolasco v. Crockett, 19-30646, appeal from E.D. La.
  • Jolly, J. (Jolly, Jones, Engelhardt), immigration, jurisdiction
  • Granting petition for panel rehearing, and entering new opinion reversing district court’s dismissal of claim for lack of jurisdiction but rendering judgment dismissing complaint with prejudice on the merits.
  • Panel’s original opinion, issued May 6, 2020, had relied on Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000). Subsequently, the Supreme Court issued an opinion in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory term “final order of removal.” Without deciding whether Nasrallah abrogated Cardoso, the panel issued this new opinion relying on its decision in Melendez v. McAleenan, 928 F.3d 425 (5th Cir.), cert. denied, 140 S. Ct. 561 (2019).
  • In 1997, plaintiff entered the United States unlawfully, but was granted temporary protected status (“TPS”) in 2002. In 2014, he sought to have his status adjusted to “permanent resident,” but due to his initial unlawful entry was denied. Plaintiff brought this suit under the Administrative Procedures Act, seeking to argue that the granting of his TPS provided the requisite inspection, admission, or paroling into the United States that is a threshold requirement for permanent status. The district court dismissed his complaint as lacking in subject matter jurisdiction.
  • As to jurisdiction, the Court held that certain nondiscretionary decisions, such as statutory interpretation, are not precluded from judiciary review by 8 U.S.C. § 1252(a)(2)(B), and that jurisdiction therefore properly should have been exercised by the district court to reach the merits of the claim.
  • On the merits, however, the Court held that, under Melendez, those people with TPS who entered the country unlawfully are thereby barred as a matter of law from seeking permanent resident status, such that plaintiff failed to state a claim on which relief could be granted.

• Angulo v. Brown, 19-40887, appeal from S.D. Tex.
  • Clement, J. (Smith, Clement, Oldham), Federal Tort Claims Act, qualified immunity
  • Affirming district court’s dismissal of claims based on injuries allegedly received at international port of entry, dismissing claims against United States under the customs-duty exception to the Federal Tort Claims Act (“FTCA”) and against the Customs and Border Protection (“CBP”) officers on qualified immunity grounds.
  • The Court first held that the stopping of the plaintiff at the border checkpoint, the search of his vehicle, and the hour-long interrogation of plaintiff were all well within the bounds of what the courts have held to be “routine” investigation at border crossings that do not require a warrant and that do not constitute unreasonable search and seizure.
  • The Court then held that the CBP officers’ use of force in detaining the plaintiff were “measured and ascending” actions that corresponded to the plaintiff’s level of resistance, as measured through the lens of what is appropriate at an international border crossing, “where the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith.” (Internal quotation marks and citations omitted). The Court brushed aside plaintiff’s arguments that his non-compliance was due to his hearing problems and that he had not understood the officers’ orders to exit his vehicle, and that the handcuffing had aggravated his existing shoulder injuries, by noting that the qualified immunity doctrine’s objective reasonableness analysis meant that the CBP officers should not have been imputed with knowledge of the plaintiff’s medical conditions or history. Since the Court found no unreasonable force, it held that the officers were entitled to qualified immunity.
  • The Court then held that the district court properly applied the customs-duty exception to qualified immunity under the FTCA.

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Unpublished

• U.S. v. Jones, 17-60285, appeal from S.D. Miss.
  • per curiam (Owen, Southwick, Higginson), criminal, search and seizure, 404(b) evidence, Due Process, Confrontation Clause, sentencing
  • Affirming convictions for conspiracy to possess with intent to distribute a mixture or substance containing cocaine hydrochloride (cocaine) and possession with intent to distribute cocaine.

• Full-Circle Staffing, L.L.C. v. Commissioner of Internal Revenue, 18-60814, appeal from U.S. Tax Court
  • per curiam (Owen, Haynes, Costa), tax, jurisdiction, mootness
  • Dismissing appeal over issues that are moot and over which the Court has no jurisdiction, and affirming Tax Court on remaining issues.

• Romo v. Waste Connections U.S., Inc., 19-11008, appeal from N.D. Tex.
  • Graves, J. (King, Graves, Oldham), ERISA, breach of contract
  • Affirming dismissal of plaintiff’s complaint for denial of severance benefits under ERISA and under contract.

• Hall v. Briser, 19-31041, appeal from W.D. La.
  • per curiam (Jolly, Elrod, Graves), pro se, frivolous
  • Affirming dismissal of pro se complaint as frivolous, for failure to state a claim upon which relief may be granted, on the basis of judicial immunity, and as barred by Heck v. Humphrey.

• Buchanan v. Wal-Mart Stores, Inc., 20-30020, appeal from W.D. La.
  • per curiam (Graves, Costa, Engelhardt), negligence
  • Affirming denial of motion to amend and summary judgment dismissal of diversity suit arising from slip-and-fall.

• Edney v. Hines, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), qualified immunity
  • Affirming district court’s entry of final judgment on order dismissing pro se claims as barred by qualified immunity and as frivolous.

• In re: Fields, 20-50351, on motion for order authorizing W.D. La. to consider successive habeas petition under § 2255
  • per curiam (Higginbotham, Graves, Costa), habeas corpus
  • Granting in part and denying in part motion to authorize successive habeas petition on basis that two of defendant’s prior convictions were not “crimes of violence” under United States v. Davis, 139 S. Ct. 2319, 2336 (2019), which qualified as “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).

• U.S. v. Cruz-Tiburcio, 20-50489, appeal from W.D. Texas
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming sentence, finding appeal arguments barred by Almendarez-Torres.