Take the Fifth: Nov. 30, 2020 opinions

Designated for publication

  • McRaney v. The North American Mission Board of the Southern Baptist Convention, Inc., 19-60293, appeal from N.D. Miss.
    • Denying en banc rehearing (Higginson, J., entering order for the panel, joined by Owen, Stewart, Dennis, Southwick, Haynes, Graves, Higginson, Costa, Engelhardt, JJ.); Ho, J., dissenting from denial of rehearing, joined by Jones, Smith, Elrod, Willett, Duncan, JJ.; Oldham, J., dissenting from denial of rehearing, joined by Smith, Willett, Duncan, Wilson, JJ.; First Amendment, religion
    • Panel had reversed district court’s dismissal of suit brought by preacher against church governing body for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. The district court’s dismissal was based on the ecclesiastical abstention doctrine, also known as the religious autonomy doctrine, finding that it would have to resolve ecclesiastical questions to resolve the claims. The panel reversed, holding that such a dismissal was premature because, at this stage of the proceedings, it did not appear certain that ecclesiastical questions were unavoidable in resolution of the plaintiff’s claims. 966 F.3d 346 (5th Cir. July 16, 2020).
    • Judge Ho dissented from the denial of rehearing en banc, observing, “This case falls right in the heartland of the church autonomy doctrine. A former Southern Baptist minister brought this suit to protest his dismissal from church leadership. That fact alone should be enough to bar this suit. As the saying goes, personnel is policy. Moreover, this case proves the truth of that old adage. The complaint acknowledges that the plaintiff was dismissed because he ‘consistently declined to accept’ church policy regarding ‘the specific area of starting new churches, including the selection, assessing and training of church planters.’ He even admits that ‘this cause of action had its roots in Church policy.’ We should take him at his word.”
    • Judge Oldham dissented, opining that the application of the abstention doctrine was straightforward: “Dr. McRaney got into a ministry dispute with the Baptist Convention of Maryland/Delaware (BCMD) and the North American Mission Board. The source of that dispute? McRaney did not share the religious organizations’ ministry vision for church planting. So BCMD voted to terminate McRaney. Then McRaney brought the ecclesiastical dispute to the civil courts. The ecclesiastical-autonomy doctrine requires us to stay out of it.” Judge Oldham then penned an extensive analysis of the deep historical roots of the ecclesiastical abstention doctrine as a necessary function of the separation of church and state.
  • Biziko v. Van Horne, 20-10033, appeal from N.D. Tex.
    • Ho, J. (Clement, Ho, Duncan), Fair Labor Standards Act
    • Affirming judgment on jury’s verdict that defendants were liable under the FLSA. The Court held that all of the defendants’ allegations of error were either not preserved at the district court or were inadequately briefed on appeal.
    • The Court held, as a matter of first impression at the Fifth Circuit, that the FLSA element of whether the defendant is an “enterprise engaged in commerce” is not a jurisdictional element of an FLSA claim and is therefore an issue that may be forfeited by failure to preserve any alleged error.


  • U.S. v. Yarbrough, 18-20193, appeal from S.D. Tex.
    • per curiam (Clement, Ho, Duncan), criminal, sentencing, supervised release
    • Vacating sentence in part for conviction for threatening to kill a federal judge, and remanding to district court to amend written judgment to be in conformance with orally announced supervised release conditions.
  • Hammoud v. Ma’at, 19-50914, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), habeas corpus
    • Affirming district court’s dismissal of § 2241 petition for lack of jurisdiction.