Take the Fifth

Designated for publication

• U.S. v. Lipscomb, 18-11168, appeal from N.D. Tex.
  • Clement, J. (Clement, Ho, Duncan), habeas corpus, Armed Career Criminal Act
  • Vacating district court’s grant of § 2255 petition and remanding to reinstate original sentence.
  • Petitioner had been convicted as a felon in possession of a firearm after being apprehended with a sawed-off shotgun and nine prior felony convictions. Under application of the ACCA, he was sentenced to a 20-year sentence, between the 15-year minimum under the ACCA and the 24-year recommended floor of the Sentencing Guidelines.
  • Subsequently, the Supreme Court held that the residual clause of the ACCA was unconstitutionally vague, and petitioner successfully petitioned the district court to remove three of his prior robbery convictions from the ACCA calculation. The district court recalculated his sentence as ten years and petitioner was released for time served. The government appealed.
  • While the appeal was pending, the Fifth Circuit’s jurisprudence regarding whether robbery under Texas law was a “violent felony” for purposes of the ACCA crystalized in the affirmative. Accordingly, the Court vacated the district court’s grant of petitioner’s § 2255 relief and remanded to reinstate his original sentence. The Court rejected petitioner’s arguments that (1) the government should be estopped from seeking to reimpose the original sentence, (2) “basic fairness” would compel a stay until the Supreme Court decides the “violent felony” issue in a case as to which certiorari has been granted, and (3) the petition should be remanded to the district court to determine an appropriate new sentence.
  • Notably, in the meantime, petitioner was arrested and is awaiting sentencing on two violations of the terms of his supervised release, and been arrested in five pending state criminal cases since his release.

• Mendoza-Tarango v. Flores, 19-10588, appeal from N.D. Tex.
  • Willett, J. (Wiener, Costa, Willett), mandamus, immigration
  • Affirming district court’s denial of mandamus relief to inmate who sought a writ of mandamus to require U.S. immigration officials to travel to the prison where is incarcerated to administer the oath of citizenship to him.
  • Plaintiff was informed in 2013, while serving a prison sentence that will lapse in 2022, that his application for citizenship had been accepted and that he would be administered the oath of citizenship at the conclusion of his incarceration. In 2019, he wrote to immigration officials asking them to come administer the oath to him in prison or to provide transportation for him to be securely brought to a USCIS facility to have the oath administered, and they never responded.
  • The Court held that, while Plaintiff had identified a discrete action–failure to administer the oath to him–he had not identified a “clear right to relief” on which to ground mandamus relief. The statute does not specify that the USCIS must travel to an applicant to administer the oath, nor does it provide a time within which the oath must be administered. The Court further held that delay that is based on the personal circumstances of the applicant (such as imprisonment) “cannot be attributed to the agency.” “To summarize, when Mendoza-Tarango appears before USCIS officials, they must administer the oath to him. But the manner in which USCIS administers the oath, including where within the United States that administration occurs, is left to the agency’s discretion.”

• Williams v. Reeves, 19-60069, appeal from S.D. Miss.
  • per curiam denial of en banc rehearing on 9-8 vote (Owen, Stewart, Dennis, Southwick, Haynes, Graves, Higginson, Costa, JJ., voting against rehearing; Jones, Smith, Elrod, Willett, Ho, Duncan, Oldham, Wilson voting for rehearing), Jones, J., dissenting (joined by Smith, Elrod, Duncan, Oldham, and Wilson in full, and by Willett and Ho in part); sovereign immunity
  • In the original panel opinion, at 954 F.3d 729 (5th Cir. 2020), the panel, with Judge Higginson authoring, reversed in part the district court’s ruling dismissing on sovereign immunity grounds the claims of plaintiffs, low-income African-American women whose children attend Mississippi public schools and who claimed that current version of the Mississippi Constitution violates the “school rights and privileges” clause of the 1870 Mississippi Readmission Act. That clause made a condition of Mississippi’s readmission to the Union after the Civil War that the state was restricted from amending or changing its constitution to “deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.” The 1868 Mississippi Constitution established those “school rights” as follows: “As the stability of a republican form of government depends mainly upon the intelligence and virtue of the people, it shall be the duty of the Legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and shall, as soon as practicable, establish schools of higher grade.”
  • Section 201 of Article 8 of the current Mississippi Constitution (1987), provides, “The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.” Plaintiffs assert that the 1987 constitution violates the Readmission Act’s “school rights and privileges” clause by removing the 1868 constitution’s reference to “a uniform system” or to any concept of uniformity, causing “significant disparities in the educational resources, opportunities, and outcomes afforded to children in Mississippi based on their race and the race of their classmates.”
  • The district court dismissed the complaint on sovereign immunity grounds, finding that Ex parte Young did not apply to the named-official defendants because the judgment would only operate against the State itself, while the declaratory relief would only apply to past conduct and not to future conduct.
  • The panel held that the Plaintiffs’ requested relief for a declaration that Section 201 of the 1987 Mississippi Constitution is violating the Readmission Act may proceed under the Ex parte Young doctrine because it sought to make a declaration as to state officials’ violations of federal law; while the Plaintiffs’ requested relief for a declaration that the requirements of the 1868 Mississippi Constitution remain binding on the defendant officials was barred by sovereign immunity because it sought to have the federal court apply state law to the state officials, applying. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 911 (1984).
  • Judge Jones, dissenting from the denial of en banc rehearing, disagreed with the distinction drawn by the panel, and would have held all of the relief sought by Plaintiffs to be barred by sovereign immunity. She concluded that the question of violation of the Readmission Act was really a request for the federal court to determine rights under state law: “The first decision the court must make on remand pits the meaning of ‘a uniform system’ of public schools in Mississippi’s 1868 constitution against ‘the establishment, maintenance and support’ of public schools enunciated in the state’s 1987 constitutional amendment. Only after finding that the provisions conflict and that the newer provision is less protective of plaintiffs’ children than the 1868 provision could a court conclude that the ‘school rights and privileges’ referenced in the federal Readmission Act have not been ‘secured by the constitution’ of Mississippi.”
  • Judge Jones then opined that the Readmission Act did not create a private right of action, and that Ex parte Young, therefore, could not be invoked even if the Plaintiffs’ claims under that Act were based purely on questions of federal law. Judge Jones concluded that the only consequence of failure to abide by the Readmission Act was the risk of representatives of the state not being permitted their seats in Congress, not a declaratory or injunctive action by private parties forcing compliance: “[E]ven assuming arguendo that Mississippi’s current education clause does not comport with the ‘fundamental conditions’ of the Mississippi Readmission Act, all that can be said is that Mississippi has chosen to run the risk that its representatives may be unseated by Congress.” Now that would be interesting.

• Salazar v. Lubbock County Hospital District, 20-10322, appeal from N.D. Tex.
  • Clement, J. (Clement, Ho, Duncan), Ho, J., concurring; employment discrimination, Age Discrimination in Employment Act
  • Affirming summary judgment dismissal of plaintiff’s discrimination claims, on finding that plaintiff failed to present a genuine dispute on defendant’s non-discriminatory reasons for termination.
  • Applying the McDonnell-Douglas framework, the Court held that Salazar failed to “show that reasonable minds could disagree that these were, indeed, the reasons for her discharge [poor performance and a lack of effort to change her performance]—either by evidence of disparate treatment or inaccuracy of the reasons given—and about whether her age was the actual reason.”
  • The Court held that no weight need be given to Plaintiff’s self-serving assessments of her work performance. It then found that evidence that she received a merit-based raise in 2016 for her 2015 job performance did not create a dispute with the employer’s evidence that her performance began to decline in 2016. The Court discounted Plaintiff’s assertion that the employer fired older respiratory therapists to make way for hiring younger–and cheaper–respiratory therapists, because she presented no evidence to substantiate those assertions. Finally, the Court held that the failure of the employer to follow its progressive discipline policy did not save Plaintiff’s claims because its policy allowed discretion to the employer, and there was evidence of a history of job performance reviews contemporaneously substantiating the employer’s position of poor performance.
  • Judge Ho concurred, to emphasize that he felt the Plaintiff’s own statements regarding her job performance weren’t defective because they were self-serving, but because they were conclusory. “We fully expect litigants to present statements that serve their interests. Indeed, our adversarial legal system is premised on that notion. The mere fact that a statement is self-serving does not reduce its value or make it unworthy of consideration. And in the summary judgment context, simply being ‘selfserving’ . . . does not prevent a party’s assertions from creating a dispute of fact.”

• Automation Support, Inc. v. Humble Design, LLC, 20-10386, appeal from N.D. Tex.
  • Costa, J. (Wiener, Costa, Willett), attorneys’ fees
  • Affirming district court’s denial of a Rule 60(b) motion regarding the award of attorneys’ fees after a voluntary dismissal with prejudice, where the Court had already affirmed the defendants’ entitlement to attorneys’ fees in a previous judgment.
  • The Court concluded by quoting Dr. Seuss: “‘We meant what we said, and we said what we meant.’ See Dr. Seuss, Horton Hatches the Egg (1940). We once again AFFIRM the judgment of the district court.”

• Southern Recycling, LLC v. Aguilar, 20-40274, appeal from S.D. Tex.
  • Clement, J. (Clement, Ho, Duncan), maritime law, admiralty jurisdiction
  • Affirming district court’s dismissal of plaintiff company’s petition for exoneration or limitation of liability under the Limitation of Liability Act, on the basis that the barge that claimants had been working on was no longer a “vessel” and was a “dead ship” no longer subject to admiralty jurisdiction.
  • The Court first rejected Plaintiff’s argument that the district. court had incorrectly resolved intertwined merits issues when resolving the jurisdictional dispute on the 12(b)(1) motion. The Court noted, “To determine whether the [intertwined merits] exception applies, we look instead to the extent to which the jurisdictional question is intertwined with the merits, considering such factors as whether the statutory source of jurisdiction differs from the source of the federal claim and whether judicial economy favors early resolution of the jurisdictional issue.” Because jurisdiction relied on the federal courts’ general admiralty jurisdiction, the Court held that the status of a “vessel” “is best understood as an antecedent jurisdictional question.” The Court then found that there was no reason why the fairly basic fact issues of whether the barge could still float could not be easily extricated from other merits questions, and that such extrication to determine the antecedent jurisdictional question would promote judicial economy.
  • The Court then held that the district court’s characterization of the barge as a “dead ship” was correct. The Court noted first that it need not ignore evidence that wasn’t submitted as part of the 12(b)(1) motion briefing (such as evidence attached to preliminary injunction briefing), so long as it was evidence the district court had in front of it at the time of its ruling. Where the barge was indisputably a vessel when it arrived at Plaintiff’s shipyard and the question was whether it was subsequently rendered a “dead ship,” the Court described the shifting burden of proof: “[W]here the line between ‘vessel’ and ‘dead ship’ is in dispute, the party challenging vessel status must show evidence of structural changes sufficient to give rise to a question of whether a vessel’s function has been so altered as to withdraw it from navigation. Then, the party asserting jurisdiction bears the burden to demonstrate that a structure retains sufficient navigation function to remain a vessel.”
  • Applying this framework, the Court cited to photographs of holes cut in the hull of the barge that were “gaping” holes extending below the fully loaded waterline, as evidence that the barge had been rendered a dead ship. The Court held that the fact that the barge “still floats” is not sufficient to show it is still a vessel. The Court also rejected Plaintiff’s description of the physical characteristics of the barge as indicative of whether it remained a “vessel”: “[A] reasonable observer would not see a raked hull and bow, but a severed bow and part of a raked hull—with a gaping hole in it. A reasonable observer would note that much of the deck has been removed, and the cargo tanks can no longer hold a cargo. A reasonable observer would not see a vessel ready to transport persons or cargo, but a dead ship in the process of being scrapped.”
  • The Court also denied Plaintiff’s request for a remand to conduct jurisdictional discovery. “A plaintiff should be ready to present some amount of basic jurisdictional evidence, or at least raise an inference that further discovery will uncover such evidence, from the outset of litigation.”

Unpublished

• U.S. v. Gill, 19-10967, appeal from N.D. Tex.
  • per curiam (King, Smith, Wilson), criminal
  • Affirming conviction for robbing two banks using threats of intimidation.

• U.S. v. Montalvo, 19-11306, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Oldham), criminal, sentencing
  • Affirming denial of downward departure and reasonableness of sentence at the bottom of Guidelines range.

• Carr v. Gonzalez, 19-20420, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), prisoner suit
  • Affirming dismissal of prisoner suit, denying various motions, reminding plaintiff of three-strikes rule, and providing additional sanctions warning.

• Bogus v. Harris County District Attorney, 19-20840, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), prisoner suit, § 1983, timeliness
  • Dismissing appeal of dismissal of § 1983 claims as untimely, denying various motions, and issuing sanctions warning.

• Magee v. BPX Properties (N.A.), L.P., 19-31000, appeal from W.D. La.
  • per curiam (Wiener, Costa, Willett), mineral law
  • Affirming summary judgment dismissing claims for delayed royalty payments from oil and gas leases.

• U.S. v. Byram, 19-40589, appeal from E.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Holman v. Collier, 19-50408, appeal from W.D. Tex.
  • per curiam (Clement, Ho Duncan), frivolous
  • Dismissing appeal from dismissal of § 1983 action as frivolous.

• U.S. v. Rodriguez, 19-50414, appeal from W.D. Tex.
  • per curiam (Clement, Elrod, Haynes), habeas corpus
  • Dismissing appeal of denial of § 2255 petition for lack of jurisdiction.

• U.S. v. Lozano, 19-50734, appeal from W.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Alcoser v. Ford, 19-50759, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Dennis), prisoner suit
  • Vacating dismissal of prisoner’s § 1983 claims and remanding for further proceedings for district court to give Plaintiff an opportunity to respond to sua sponte grounds for dismissal.

• Li v. Barr, 19-60336, petition for review of BIA order
  • per curiam (Barksdale, Graves, Oldham), immigration
  • Denying petition for review of BIA decision dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Varela v. Barr, 19-60385, petition for review of BIA order
  • per curiam (King, Smith, Wilson), immigration
  • Denying petition for review of BIA decision dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Njenga v. Barr, 19-60446, petition for review of BIA order
  • per curiam (Barksdale, Graves, Oldham), immigration
  • Denying petition for review of BIA decision that adopting IJ decision that petitioner had filed a frivolous asylum application and was therefore statutorily barred from adjustment of status.

• Mauricio-Benitez v. Barr, 19-60546, petition for review of BIA order
  • per curiam (Barksdale, Graves, Oldham), immigration
  • Dismissing in part and denying in part petition to review BIA order denying motion to reopen and terminate in absentia removal proceedings.

• Canales-Berrios v. Barr, 19-60742, petition for review of BIA order
  • per curiam (Wiener, Costa, Willett), immigration
  • Affirming BIA decision reinstating in absentia order of removal.

• U.S. v. Riley, 19-60941, appeal from S.D. Miss.
  • per curiam (Barksdale, Graves, Oldham), criminal, sentencing, First Step Act
  • Affirming district court’s denial of motion for sentence reduction under the First Step Act.

• U.S. v. Nunley, 20-10087, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming above-Guidelines sentence for conviction as felon in possession of a firearm.

• U.S. v. Zuniga, 20-10356, appeal from N.D. Tex.
  • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
  • Affirming within-Guidelines sentence for conviction of maintaining a drug-involved premises.

• Anderson v. Louisiana Department of Transportation and Development, 20-30253, appeal from W.D. La.
  • per curiam (Jolly, Elrod, Graves), Title VII, employment discrimination, retaliation
  • Reversing district court’s summary judgment dismissal of Plaintiff’s claims that she was impermissibly terminated after complaining of supervisor’s alleged racist and sexist behavior, and remanding for further proceedings.

• U.S. v. Okpalobi, 20-30429, appeal from E.D. La.
  • per curiam (Higginbotham, Smith, Oldham), criminal, compassionate release
  • Granting IFP status, and affirming district court’s denial of compassionate release on finding no abuse of discretion.

• Connor v. Stewart, 20-50150, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), First Amendment, retaliation
  • Affirming award of sanctions against Plaintiff after prior remand from the Court.

• Deras-Leon v. Barr, 20-60101, petition for review of BIA orders
  • per curiam (Jones, Barksdale, Stewart), immigration
  • Dismissing in part and denying in part BIA orders upholding IJ denial of motion to reopen.