Take the Fifth: Oct. 30, 2020 opinions

Designated for publication

  • Whole Woman’s Health v. Paxton, 17-51060, appeal from W.D. Tex.
    • per curiam (Owen, Jones, Smith, Stewart, Dennis, Elrod, Graves, Haynes, Higginson, Costa, Willett, Ho, Engelhardt, Wilson); abortion law
    • After the October 13 release of the panel opinion affirming the district court’s injunction of enforcement of Texas Senate Bill 8 (requiring 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, and the October 22 release of the dissenting opinion by Judge Willett, the en banc Court entered a quick order vacating the panel opinion and order an en banc rehearing. Judges Southwick, Duncan, and Oldham recused.
  • In re: Hall, 19-10345, on motion for authorization to file successive § 2255 petition in N.D. Tex.
    • Ho, J. (Dennis, Ho, Oldham), Dennis, J., dissenting; habeas corpus, death penalty, crime of violence
    • Denying motion for authorization to file successive § 2255 petition. Holding that the crime of kidnapping resulting in death satisfies the “crime of violence” element for a conviction under 18 U.S.C. § 924(c). Also determining, in dicta, that the Supreme Court’s holding in Davis v. United States, 139 S. Ct. 2319 (2019), that the “residual clause” in § 924(c)(3) is unconstitutionally vague, was not made retroactive by the Supreme Court such as to allow a successive habeas petition on the issue.
    • Judge Dennis dissented, pointing out that the jury at defendant’s trial was instructed as to the residual clause of § 924(c)(3), not as to the use of the kidnapping resulting in death as an element to support the conviction. And as to the majority’s dicta regarding the retroactivity of Davis, Judge Dennis noted that panels of four sister Circuits had unanimously held that Davis is retroactive, and that the majority’s dicta to the contrary “advances an eccentric reading of 28 U.S.C. § 2255(h)(2), the provision governing the requirements for authorization, that is contrary not only to our well-established circuit precedent but also to the holdings of every other circuit court.”
  • Cochran v. Securities and Exchange Commission, 19-10396, appeal from N.D. Tex.
    • per curiam (Owen, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham, Wilson); Securities and Exchange Commission
    • Vacating August 11, 2020 panel decision (Owen, Haynes, Costa; majority opinion by Costa, J.; Haynes, J., dissenting in part), and ordering en banc rehearing on issue of whether a constitutional challenge to an SEC enforcement action before the conclusion of that proceeding is a viable avenue around the judicial review procedure in 15 U.S.C. § 78y. Judge Ho recused.
  • Sanchez v. Smart Fabricators of Texas, L.L.C., 19-20506, appeal from S.D. Tex.
    • per curiam (Owen, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson); Jones Act, seaman
    • Vacating August 14, 2020 panel opinion (Davis, Jones, Willett; Davis, J., majority opinion; Davis, J., joined by Jones, Willett, JJ., specially concurring), and ordering en banc rehearing on issue of plaintiff’s status as Jones Act seaman.


  • Mi Familia Vota v. Abbott, 20-50907, appeal from W.D. Tex.
    • per curiam (Owen, Davis, Southwick), election law, Covid-19, mask mandate
    • After entering an administrative stay of the district court’s injunction against the exemption from Texas’s mask mandate for voters, poll watchers, and poll workers, the Court now enters a substantive stay of that injunction pending appeal.
    • Court observed, “Plaintiffs raised no other evidence, nor did the district court cite to any, to support the proposition that the disruption to Texas’s election rules would be minimal. In contrast, the Governor and Secretary offered declarations from five election officials who unanimously agreed that changing the election rules to require voters to wear masks this close to the election would be costly and cause voter confusion.”
    • Court concluded, “A change in the election rules at this point alters the status quo established by GA-29 and Exemption 8 on July 2, 2020. More than nine million voters have already cast ballots in Texas during early voting, which is more than the entire voter turnout of 8,969,226 for the 2016 election. We acknowledge that requiring voters to wear a mask in order to vote is not akin to the level of election disruption that would have resulted from other injunctions this court has stayed. Nevertheless, the Governor and Sectary’s unrebutted evidence establishes that changing the election rules in the midst of voting would create disparate treatment of voters, and significant confusion and difficulty for voters and poll workers.”
    • The panel was unanimous, with no judge writing to concur or dissent. If one had, they could have written, “If the requirement to wear a mask was costly and likely to cause confusion when the United States just recorded more than 101,000 new COVID-19 infections on October 30, shattering the one-day record of more than 85,000 that was set the day before, then such confusion is not reasonable and should not be relied on for the State of Texas to subject voters, poll workers, and poll watchers to the horrible dilemma of exercising their hard-won right to vote or protecting themselves from a raging pandemic.”
  • U.S. v. Vasquez-Cortez, 19-50245, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Ho), criminal, Confrontation Clause
    • Affirming conviction, finding any error by district court in admission of certificate of nonexistence of record was harmless.
  • Price v. Wheeler, 20-10380, appeal from N.D. Tex.
    • Wiener, J. (Wiener, Southwick, Duncan), Title VII, employment discrimination
    • Affirming dismissal of employee’s discrimination, retaliation, and harassment claims.