Take the Fifth

Designated for publication

• Mi Familia Vota v. Abbott, 20-50907, appeal from W.D. Tex.
  • per curiam (Owen, Davis, Southwick), election law, Covid-19, mask mandate
  • On October 27, 2020, on a remand from the Fifth Circuit, the district court issued a preliminary injunction of one provision of Governor Abbott’s declaration regarding COVID-19-related election procedures in Texas–specifically, a provision exempting voters, people assisting voters, poll watchers, and election workers from the state’s mask mandate. The district court held that this exemption, due to the discriminatory effect on more vulnerable populations of Black and Hispanic voters, violated section 2 of the Voting Rights Act. Mi Familia Vota v. Abbott, No. SA-20-CV-00830-JKP (W.D. Tex. Oct. 27, 2020).
  • The Court of Appeals has stayed the defendants’ opposed motion for stay of the district court’s injunction “until further order of the Court,” but granted defendants’ motion for an administrative stay pending the Court’s ruling on the substantive motion for stay. So, there is a stay of the injunction in place, that could be lifted once the merits of the stay application are determined, or could be extended. Why this two-sentence stay order is designated for publication, particularly when most of the above analysis of what’s at stake can only be determined by searching for the underlying district court judgment, is hard to fathom.

• U.S. v. Barnes, 18-31074, appeal from E.D. La.
  • Owen, C.J. (Owen, Haynes, Costa), criminal, healthcare fraud, sufficiency of evidence, sentencing, expert witness
  • The Court rejected the defendants’ sufficiency-of-evidence challenges, holding that this case was like the vast majority of “concert of action” cases where the government presents the testimony of an “insider” with direct evidence of the conspiratorial scheme. The Court also held that there was sufficient evidence of the defendants’ knowledge that the patients he was certifying as homebound were not, in fact, homebound. In addition to direct evidence regarding what he was told by his nurse practitioner, “[e]vidence of a financial incentive for home health care referrals and statistical evidence probative of fraudulent conduct are circumstantial evidence of Barnes’s knowledge.”
  • The Court also held that the count for obstruction of a federal audit met the jurisdictional amount, regardless of evidence that the defendant himself received at least $100,000, because it was sufficient that Medicare received at least $100,000 under the broad language of the statute requiring only that the audit be related to a person, entity, or program receiving at least $100,000.
  • The Court next held that there was no reversible error in the prosecutors’ improper comments that the defendants were “elitist” (part of a closing argument tit-for-tat with one of the defendants’ counsel regarding eating at Galatoire’s–because, while improper, the remarks did not affect the defendants’ substantive rights due to the overwhelming evidence of their guilt.
  • The Court held there was no abuse of discretion in the district court’s refusal to read into the jury instructions certain civil regulations related to Medicare, based on the concern that the civil regulations may confuse the jurors as to the criminal elements they were required to focus on in determining guilt.
  • As to whether the district court erred in admitting expert testimony of Dr. Brobson Lutz regarding whether certain patients were “homebound,” the Court noted that his testimony could have led to confusion of the jury with regard to competing standards of “homebound,” but that this confusion would not have arisen to an abuse of discretion in admitting the testimony or to plain and indisputable error. “We are certainly troubled by some aspects of Dr. Lutz’s testimony. Nevertheless, we cannot conclude these aspects of Dr. Lutz’s testimony amounted to manifest error.”
  • On sentencing, the Court held that the district court did not abuse its discretion in declining to hold an evidentiary hearing on the loss calculation for purposes of determining the sentencing range, because defendant had ample opportunity prior to sentencing to present evidence on the loss calculation.
  • The Court determined that a clear-error standard of review should apply to the district court’s determination that the healthcare fraud at issue was “pervasive.” “[W]e believe it is more appropriate to define a district court’s ‘pervasiveness determination’ as a background factual finding that informs the ultimate methodology employed by the court.” The Court then held that there was no clear error in the district court’s pervasiveness determination here.
  • The Court also held that the district court did not abuse its discretion in denying one of the defendant’s motion to sever her trial from her co-conspirators’ trial. The Court recognized that the rule, rather than the exception, is that defendants indicted together should be tried together, especially in a conspiracy case, and held that the defendant failed to show why she should be the exception.

• Speech First, Inc. v. Fenves, 19-50529, appeal from W.D. Tex.
  • Jones, J. (King, Jones, Costa), First Amendment, Freedom of Speech, injunction, mootness
  • Vacating district court’s order dismissing Free Speech challenge to University regulations on the basis that the plaintiff organization lacked standing, and remanding for further proceedings. “The chilling effect of allegedly vague regulations, coupled with a range of potential penalties for violating the regulations, was, as other courts have held, sufficient injury to ensure that Speech First has a personal stake in the outcome of the controversy.” (Internal quotation marks and citation omitted).
  • Plaintiff, which includes among its members students at the University of Texas, challenged four University regulations of speech. The first prohibited “verbal harassment,” which includes “threats, insults, epithets, ridicule, [and] personal attacks,” and “is often based on the victim’s appearance, personal characteristics, or group membership, including but not limited to race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, gender identity or gender expression, ideology, political views, or political affiliation.” The second is an “acceptable use” policy that requires “civil” communications and for someone to stop sending rude or harassing communications when requested by the person to whom the communication is directed. “Disagreements between people, even heated arguments, unless threatening or otherwise unlawful, are not considered violations. UT Austin does, however, strongly encourage all its users to be polite and courteous.” The third is the residence hall manual, which addresses “harassment” and “incivility.” The fourth is the University’s “Hate and Bias Incidents Policy.” As part of that policy, the University implemented a Campus Climate Response Team (“CCRT”), which had authority to investigate reports, including anonymous reports, of hateful or violent speech.
  • Members of the plaintiff organization brought their suit challenging the four regulations on their face, asserting that their speech rights were chilled, that they wished to have “open and robust intellectual debates and discussion about these issues [of ‘politics, race, religion, gender identity, abortion, gun rights, immigration, foreign affairs, and countless other sensitive and controversial topics’] in their dormitories, on campus, online, and in the City of Austin.” After a hearing on a motion for preliminary injunction against CCRT enforcement, the district court dismissed plaintiff’s suit for lack of standing, finding “no evidence that any University students . . . have been disciplined, sanctioned, or investigated for their speech,” and thus no “credible threat of enforcement of the challenged policies.”
  • The Court held that changes made by the University during the pendency of the appeal to consolidate and clarify several of the policies at issue did not moot plaintiff’s suit. The Court held that the University President’s representations in the appeal briefs that he would not reinstate or enforce the complained-pf language were insufficient to be a controlling statement of the University’s future intention. It then held that “the timing of the University’s policy amendments is at least … suspicious.” And the Court observed that the University continued to defend the challenged language in its appeal briefs.
  • The Court next held that the plaintiff had the requisite associational standing. Examining whether members of the plaintiff could demonstrate standing on their own, the Court observed that “[t]he gravamen of Speech First’s claims is that its student-members wish to engage in robust debate on timely and controversial political topics from a contrarian point of view. Because their views do not mirror those of many on campus, their speech may be deemed ‘harassment,’ ‘rude,’ ‘uncivil,’ or ‘offensive,’ as those terms are defined in the University’s policies. Their speech may also credibly run afoul of the Hate and Bias Incidents Policy and may be investigated by the CCRT. Either way, credible threats of enforcement exist under these policies or through referral from the CCRT.” The Court noted, “This court has repeatedly held, in the pre-enforcement context, that ‘[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.'”
  • In response to the University’s argument that it has no history of enforcement, or intention to enforce, against First Amendment protected speech asserted here by plaintiff. The Court queried, “[I]f there is no history of inappropriate or unconstitutional past enforcement, and no intention to pursue discipline against students under these policies for speech that is protected by the First Amendment, then why maintain the policies at all? At least, why maintain the plethora of potential sanctions?” The Court took particular umbrage with the CCRT. “The CCRT, in some measure, represents the clenched fist in the velvet glove of student speech regulation. That the CCRT invites anonymous reports carries particular overtones of intimidation to students whose views are ‘outside the mainstream.’ As one expert explains, ‘[i]n both concept and design, such efforts [by bias response teams] to encourage students to anonymously initiate disciplinary proceedings for perceived acts of bias or to shelter themselves from disagreeable ideas are likely to subvert free and open inquiry and invite fears of political favoritism.’ Keith Whittington, Free Speech and the Diverse University, 87 Fordham L. Rev. 2453, 2466 (2019).”
  • The Court held that it would remand to the district court to determine in the first instance if a preliminary injunction is warranted, though it did note, “At the same time, we note the consistent line of cases that have uniformly found campus speech codes unconstitutionally overbroad or vague.”

• In the Matter of: ABC Dentistry, P.A., 19-40580, appeal from S.D. Tex.
  • Ho, J. (Dennis, Southwick, Ho), fiduciary duty, amendment, res judicata
  • Reversing district court’s affirmance of bankruptcy court’s dismissal of plaintiff’s claim on res judicata grounds and denial of motion to amend complaint. Plaintiff in adversary action moved to reopen his bankruptcy to bring complaint against his attorneys for breach of fiduciary duty, alleging that attorneys had engaged in a side-deal during discussions of settling bankruptcy claims that resulted in increasing their fees drastically at his expense. Bankruptcy court held that the breach of fiduciary duty claim was barred by res judicata, and denied plaintiff’s motion to amend his original bankruptcy petition.
  • Court of Appeals held that the plaintiff could not have known of the breach of fiduciary duty claim in time to object to the agreed resolution of the bankruptcy claim, and that he therefore should have been allowed to amend his complaint to attempt to plead around res judicata.
  • The Court had particularly strong words about the nature of the alleged claims. “Cause, not self. That is the sworn duty of every member of the legal profession—to subordinate their own interests to those of their clients. Dr. Saeed Rohi contends that his attorneys violated this cardinal principle when they assured him that they were acting in his best interest, when in fact they were maximizing their fees at his expense. Dr. Rohi’s claim may or may not ultimately succeed on the merits. But he should have the opportunity to make his case.”

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Unpublished

• Raicevich v. Fieldwood Energy, L.L.C., 19-40580, appeal from S.D. Tex.
  • per curiam (Smith, Willett, Duncan), Longshore and Harbor Workers’ Compensation Act
  • Affirming district court’s dismissal of suit on holding that the Longshore and Harbor Workers’ Compensation Act was plaintiff’s exclusive remedy.

• Dotson v. Tunica-Biloxi Gaming Commission, 20-30261, appeal from W.D. La.
  • per curiam (Haynes, Willett, Ho), sovereign immunity, service
  • Affirming the dismissal of plaintiff’s claim alleging fabrication of slot machine error code to steal $20,500,000 jackpot from plaintiff, dismissing claim against tribal gaming commission on the basis of tribal sovereign immunity and against casino employees for failure to properly and timely serve.

• U.S. v. Belden, 20-40103, appeal from E.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Affirming substantive reasonableness of above-guidelines sentence.

• U.S. v. Rutherford, 20-40511, appeal from E.D. Tex.
  • per curiam (Willett, Ho, Duncan), compassionate release
  • Denying motion for IFP status, denying request for compassionate release, dismissing appeal, and issuing sanctions warning.

• U.S. v. Valdez, 20-50270, appeal from W.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion and dismissing appeal.