Take the Fifth: Nov. 12, 2020 opinions

Designated for publication

  • Richardson v. Hughs, 20-50774, appeal from W.D. Tex.
    • Smith, J. (Higginbotham, Smith, Oldham), intervention, election law
    • Denying motion to intervene on appeal, by plaintiff in similar but separate case. This motion arises from two lawsuits challenging Texas’s signature-verification scheme for absentee ballots.
    • Noting that, “[p]erhaps because there is no rule explicitly allowing intervention on appeal, the caselaw explicating the standards for such motions is scarce,” the Court held that the standard to be applied was that “motions to intervene on appeal are reserved for truly exceptional cases.”
    • Because of the procedural posture of the Flores intervenors, the Court held that the “truly exceptional case” standard was not met. Here, the plaintiffs in the separate Flores litigation had moved to intervene at the Richardson district court level, seeking a stay of Richardson until the conclusion of the first-filed Flores litigation. In the same order granting injunctive relief to the Richardson plaintiffs, the district court denied the Flores plaintiffs’ motion for intervention. The Flores parties have appealed the denial of their motion for intervention, but then separately also filed this motion to intervene on appeal. The Court noted that, because the same panel will hear both the Texas state parties’ appeal from the merits of the Richardson injunction and the Flores parties’ appeal of the denial of their district court motion to intervene, there is not an exceptional reason for the intervention to be brought to a separate motions panel of the appellate court.
    • The Court did acknowledge, however, that the Flores parties offer a unique view on the underlying merits of the Richardson injunction appeal, arguing that the district court was correct that the Texas signature-verification requirement was unconstitutional, aligned with the Richardson plaintiffs, while also arguing that the injunctive relief fashioned by the district court is ineffective, aligned with the Richardson defendants. Accordingly, the Court sua sponte treated the Flores parties’ motion to intervene as a motion for leave to file an amicus brief in the appeal of the underlying injunction order, such that they will file their own appeal brief in the appeal of the denial of their motion to intervene and an amicus brief in the appeal from the injunction. “To the extent Movants want their voices heard, however, the proper procedure is to move to appear as amici curiae, not to move to intervene.”


  • U.S. v. Le, 19-20867, appeal from S.D. Tex.
    • per curiam (Jones, Costa, Wilson), habeas corpus
    • Granting certificate of appealability, and remanding for district court to give reasons for denial of § 2255 petition.
  • U.S. v. Ramirez, 19-40452, appeal from S.D. Tex.
    • per curiam (Graves, Costa, Engelhardt), criminal, sentencing, First Step Act
    • Vacating district court’s denial of motion for sentence reduction under the First Step Act, and remanding for further proceedings.
  • Faudoa-Gonzalez v. Barr, 19-60131, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Granting in part and denying in part petition for review of BIA order dismissing appeal of IJ decision ordering removal, and remanding for further proceedings.
  • Yarbrough v. Hunt Southern Group, LLC, 19-60880, appeal from S.D. Miss.
    • per curiam (Barksdale, Elrod, Ho), tenant-landlord
    • Affirming summary judgment for defendant in constructive eviction case arising from mold claims in federal military housing.
  • U.S. v. Carrasco, 20-10551, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • RedHawk Holdings Corp. v. Schreiber, 20-30157, appeal from E.D. La.
    • per curiam (Jones, Haynes, Ho), enforcement of settlement agreement, reply briefing
    • Vacating district court’s order granting motion to enforce settlement where it was based on evidence provided for the first time in a reply brief, and remanding to district court for non-movant to provide surreply brief and for further proceedings.
  • Sebhatleab v. Barr, 20-60037, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying in part and dismissing in part for lack of jurisdiction petition to review BIA order denying motion to remand.