Take the Fifth

• Brackeen v. Haaland, 18-11479, appeal from N.D. Tex.
  • per curiam (Owen, Jones, Smith, Wiener, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham), Indian Child Welfare Act, standing, Administrative Procedures Act
  • No one principal opinion commanded a majority of the en banc Court as to the constitutionality of the Indian Child Welfare Act or the compliance of the Final Rule implementing the act with the Administrative Procedures Act. All total, there are 325 pages of opinions. The attributed opinions were preceded by a per curiam summary of the results:
    • “The en banc court unanimously holds that at least one Plaintiff has standing to challenge Congress’s authority under Article I of the Constitution to enact ICWA and to press anticommandeering and nondelegation challenges to specific ICWA provisions. The en banc court also unanimously holds that Plaintiffs have standing to challenge the Final Rule as unlawful under the APA. The en banc court is equally divided as to whether Plaintiffs have standing to challenge two provisions of ICWA, 25 U.S.C. §§ 1913 and 1914, on equal protection grounds, and the district court’s conclusion that Plaintiffs can assert this claim is therefore affirmed without a precedential opinion. An en banc majority also holds that Plaintiffs have standing to assert their equal protection challenges to other provisions of ICWA.”
    • “On the merits, an en banc majority agrees that, as a general proposition, Congress had the authority to enact ICWA under Article I of the Constitution. An en banc majority also holds that ICWA’s ‘Indian child’ classification does not violate equal protection. The district court’s ruling to the contrary on those two issues is therefore reversed. The en banc court is equally divided, however, as to whether Plaintiffs prevail on their equal protection challenge to ICWA’s adoptive placement preference for ‘other Indian families,’ 25 U.S.C. § 1915(a)(3), and its foster care placement preference for a licensed ‘Indian foster home,’ § 1915(b)(iii). The district court’s ruling that provisions of ICWA and the Final Rule are unconstitutional because they incorporate the ‘Indian child’ classification is therefore reversed, but its ruling that § 1915(a)(3) and (b)(iii) violate equal protection is affirmed without a precedential opinion.”
    • “An en banc majority holds that ICWA’s ‘active efforts,’ § 1912(d), expert witness, § 1912(e) and (f), and recordkeeping requirements, § 1915(e), unconstitutionally commandeer state actors. The district court’s judgment declaring those sections unconstitutional under the anticommandeering doctrine is therefore affirmed.”
    • “However, the en banc court is equally divided on whether the placement preferences, § 1915(a)–(b), violate anticommandeering to the extent they direct action by state agencies and officials6; on whether the notice provision, § 1912(a), unconstitutionally commandeers state agencies; and on whether the placement record provision, § 1951(a), unconstitutionally commandeers state courts. To that extent, the district court’s judgment declaring those sections unconstitutional under the anticommandeering doctrine is affirmed without precedential opinion.”
    • “[A]n en banc majority holds that several challenged ICWA provisions validly preempt state law and so do not commandeer states. Those are provisions granting certain private rights in state child custody proceedings—namely, the right to intervene, § 1911(c), to appointed counsel, § 1912(b), to examine documents, § 1912(c), to explanation of consent, § 1913(a), to withdraw consent, § 1913(b), (c), and (d), to seek invalidation, § 1914, to seek return of custody, § 1916(a), and to obtain tribal information, § 1917.9 In addition, an en banc majority holds that the following provisions validly preempt contrary state law to the extent they apply to state courts (as opposed to state agencies): the placement preferences, § 1915(a) and (b), and the placement and termination standards, § 1912(e) and (f). The district court’s rulings to the contrary are therefore reversed.”
    • “[A]n en banc majority holds that § 1915(c), which permits Indian tribes to establish an order of adoptive and foster preferences that is different from the order set forth in § 1915(a) and (b), does not violate the non-delegation doctrine. The district court’s ruling to the contrary is therefore reversed.”
    • “An en banc majority holds that the BIA did not violate the APA by concluding in the Final Rule that it may issue regulations binding on state courts.”
    • “But an en banc majority also holds that—consistently with the en banc court’s holding that §§ 1912(d), 1912(e), and 1915(e) commandeer states—the Final Rule violated the APA to the extent it implemented these unconstitutional provisions.”
    • “Finally, an en banc majority determines that 25 C.F.R. § 23.132(b)—the part of the Final Rule interpreting § 1915’s ‘good cause’ standard to require proof by clear and convincing evidence—violated the APA. An en banc majority holds that the Final Rule did not violate the APA in any other respect. The district court’s grant of relief under the APA is affirmed to the extent it is consistent with these holdings and reversed to the extent it is inconsistent with these holdings.”
  • Dennis, J., opinion of the en banc court with respect to Parts II(B), II(C), and II(D)(2) of his opinion; Judges Stewart and Graves join this opinion in full. Judges Wiener, Higginson, and Costa join all except Discussion Part I.A.2 (standing to bring equal protection claims other than the challenges to 25 U.S.C. §§ 1913-14). Chief Judge Owen joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), I.C (standing to bring anticommandeering claims), II.A.2.a.1 (anticommandeering challenge to §§ 1912(e)-(f) and 1915(a)-(b) as they pertain to state courts), and II.C (nondelegation). She further joins Discussion Part I.D (standing to bring nondelegation claim) except as to the final sentence. Judge Southwick joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), II.A.1 (Congress’s Article I authority), II.B (equal protection), and II.C (nondelegation). He further joins in-part Discussion Parts II.A.2 (anticommandeering) and II.D (APA challenge to the Final Rule), disagreeing to the extent the analyses pertains to § 1912(d)-(f) and the regulations that implement those provisions. Judge Haynes has expressed her partial concurrence in her separate opinion.
  • Duncan, J., opinion of the en banc court with respect to Parts III(B)(1)(a)(i)–(ii), III(B)(1)(a)(iv), III(B)(2)(a)–(c), III(D)(1), and III(D)(3) of his opinion. Judges Smith, Elrod, Willett, Engelhardt, and Oldham join Judge Duncan’s opinion in full. Judge Jones joins all except Parts III(A)(2) (equal protection as to “Indian child”) and that portion of Part III(B)(2)(a) concerning preemption by the appointed counsel provision in 25 U.S.C. § 1912(d). Chief Judge Owen joins Part III(B) (anti-commandeering/preemption) and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) violates APA). Judge Southwick joins Parts III(B)(1)(a)(i)–(ii) (anti-commandeering as to § 1912(d)–(f)); Part III(B)(2)(a) (preemption); Part III(B)(2)(b) (in part) (no preemption, only as to § 1912(d)–(f)); Part III(B)(2)(c) (in part) (preemption, except as to the discussion of § 1951(a)); and Part III(D)(1) (in part) (Final Rule violates APA to extent it implements § 1912(d)–(f)). Judge Haynes joins Part I (standing); Part III(A)(3) (equal protection as to “other Indian families”); Parts III(B)(1)(a)(i), III(B)(1)(a)(iv), III(B)(1)(a)(ii) (in part), III(B)(1)(b) (in part), and III(B)(2)(b) (in part) (anti-commandeering/preemption as to §§ 1912(d)–(e) and 1915(e)); Part III(D)(1) (in part) (Final Rule violates APA to extent it implements provisions found unconstitutional in those portions of Parts III(A) and (B) that Judge Haynes joins); and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) fails at Chevron step one).
  • Owen, C.J., concurring in part and dissenting in part.
  • Wiener, J., dissenting in part.
  • Haynes, J., concurring.
  • Higginson, J., concurring in part, joined by Costa, J.
  • Costa, J., concurring in part and dissenting in part, with whom Chief Judge Owen joins as to Parts I and II(A) and the final paragraph of Part II(B), with whom Judges Wiener and Higginson join, with whom Judge Dennis joins as to Part II, and with whom Judge Southwick joins as to part I.

• U.S. v. Horton, 18-11577, appeal from N.D. Tex.
  • Graves, J. (Dennis, Graves, Willett), criminal, sentencing
  • On remand from U.S. Supreme Court, the original panel considered anew its affirmance of a 262-month sentence on a guilty plea conviction for possession with intent to distribute 500 grams or more of methamphetamine. The panel affirmed the sentence again, upon consideration of the Supreme Court’s vacatur and directive to review the sentence in light of Davis v. United States, 140 S. Ct. 1060, 1061 (2020), which requires that unpreserved claims of factual error be reviewed under the full plain error test.

• Cloud v. Stone, 20-30052, appeal from W.D. La.
  • Duncan, J. (Smith, Willett, Duncan), excessive force, qualified immunity
  • Affirming summary judgment dismissal of excessive force claims by parents of man who was tased and then shot and killed during a traffic stop. The Court held that the district court did not err in finding that the taser use was justified as the victim was actively resisting detention at the time the officer discharged his taser. The Court then held that the use of deadly force was justified because the officer did not shoot the victim until after the victim had already shot him once in the chest and was moving to lunge for his own revolver again when he was shot.

• U.S. v. Shkambi, 20-40543, appeal from E.D. Tex.
  • Oldham, J. (Ho, Oldham, Wilson), criminal, First Step Act
  • Reversing and remanding district court’s dismissal for lack of jurisdiction of motion for sentence reduction under the First Step Act; the Court held that the district court did have jurisdiction and that the U.S. Sentencing Commission’s compassionate-release policy statement was not binding on district courts and not applicable.
  • The district court has held that the defendant’s extraordinary-and-compelling-reasons argument “fail[ed] because it [wa]s untethered to the Sentencing Commission’s binding applicable policy statement in section 1B1.13 of the Sentencing Guidelines.” The Court held, first, that the district court did have jurisdiction. “Notwithstanding that final judgment [imposing the sentence], however, § 3582(c) authorizes the BOP or a prisoner under certain circumstances to file a post-judgment ‘motion’ for modification of a sentence. It is plain from the text of § 3582 that such a ‘motion’ shall be filed—as Shkambi’s was—in the same docket that contains the prisoner’s final judgment. … It’s true that § 3582 does not authorize a district court to modify a sentence based on caprice or unbridled discretion. It’s also irrelevant. All sorts of federal statutes impose legal limits on district courts. … But not all legal limits are jurisdictional ones.”
  • The Court then held that the pre-First Step Act policy statement application note of the Sentencing Commission–that enumerated four conditions that could justify compassionate release, “(A) medical conditions of the defendant[,] (B) age of the defendant[,] (C) family circumstances[,] and (D) other reasons”–was inapplicable. Because the original policy statement predated the FSA, to a time when only motions of the director of the Bureau of Prisons could seek such relief, the Court held that the statement could not apply to defendants’ motions under the FSA, and that “the district court cannot rely on pieces of text in an otherwise inapplicable policy statement.”

• Kristensen v. U.S., 20-50200, appeal from W.D. Tex.
  • Willett, J. (Wiener, Costa, Willett), Federal Tort Claims Act
  • Affirming dismissal of claims against the United States under the Federal Tort Claims Act, arising from the 2015 shooting at Fort Hood.
  • The Court held that the evidence in the record supported the district court’s finding at the end of a two-week bench trial that the plaintiffs failed to show proximate cause between the government’s response to the domestic violence incident between the army specialist and his wife and the subsequent shooting of the neighbors who were trying to protect the wife, and the wife.

• Cambranis v. Blinken, 20-50399, appeal from W.D. Tex.
  • Higginson, J. (Stewart, Higginson, Wilson), immigration, sovereign immunity
  • Affirming district court’s dismissal of plaintiff’s claims arising from the denial of his repeated applications for a U.S. passport. After the plaintiff had conceded that his claims under 8 U.S.C. § 1503(a) and the Administrative Procedures Act were barred, the plaintiff pursued appeal only of the dismissal of his constitutional claims. The Court held that the government had not waived its sovereign immunity under § 702 of the APA to the claims brought by plaintiff.
  • “This case turns on the nature of—and the relationship between—two statutes: 5 U.S.C. § 702 and 8 U.S.C. § 1503(a). Section 702 of the APA waives the United States’ sovereign immunity for actions seeking non-monetary relief against federal government agencies. The waiver applies both to statutory claims and to non-statutory causes of action against federal agencies arising under 28 U.S.C. § 1331. Cambranis thus relies on the sovereign immunity waiver contained in § 702 in order to bring his constitutional claim, seeking declaratory relief, against a department of the United States.” (Internal quotation marks and citations omitted). “Relevant here, § 702 states that ‘[n]othing herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.'” The Court held that, because “Congress intended § 1503(a) to be the exclusive remedy for a person within the United States to seek a declaration of U.S. nationality following an agency or department’s denial of a privilege or right of citizenship upon the ground that the person is not a U.S. national[,] … the ‘any other statute’ proviso of § 702 maintains the United States’ sovereign immunity against Cambranis’s constitutional claim because the statute of limitations contained in § 1503(a) has run and thus expressly forbids the relief sought.”

• Tejero v. Portfolio Recovery Associates, LLC, 20-50543, appeal from W.D. Tex.
  • Oldham, J. (Higginbotham, Costa, Oldham), Fair Debt Collection Practices Act
  • Affirming district court’s judgment denying award of attorneys’ fees under the FDCPA, holding that a private settlement does not constitute a “successful action to enforce … liability” under that act’s fee-shifting provision.

Unpublished

• McCoy v. Alamu, 18-40856, appeal from S.D. Tex.
  • per curiam (Jolly, Smith, Costa), § 1983
  • Vacating dismissal of claim and remanding to district court in accordance with Supreme Court vacatur and remand.

• U.S. v. Murrieta, 19-10765, appeal from N.D. Tex.
  • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
  • Affirming 151-month sentence on conviction for assaulting a federal officer, resulting in bodily injury.

• U.S. v. Castellanos-Navarro, 19-11342, appeal from N.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Flores, 19-20603, appeal from S.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Gilbert v. Lessard, 19-30748, appeal from M.D. La.
  • per curiam (Davis, Stewart, Dennis), prisoner suit
  • Affirming dismissal of prisoner’s suit alleging excessive force against prison officials.

• Stovall v. Johnson, 19-31061, appeal from W.D. La.
  • per curiam (Jolly, Elrod, Graves), habeas corpus
  • Affirming dismissal of § 2241 petition.

• Ruiz v. Edge, 19-40277, appeal from E.D. Tex.
  • per curiam (Davis, Stewart, Dennis), habeas corpus
  • Affirming dismissal of § 2241 petition as procedurally barred.

• Brown v. Brown, 19-60299, appeal from S.D. Miss.
  • per curiam (Clement, Higginson, Engelhardt), prisoner suit
  • Affirming dismissal of former prisoner’s suit for discrimination on the basis of religion.

• Cantu v. Carr, 20-10441, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), habeas corpus
  • Affirming dismissal of § 2241 petition.

• U.S. v. Chavez, 20-10503, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Affirming 188-month sentence on guilty plea conviction to conspiracy to possess with intent to distribute methamphetamine.

• U.S. v. Hernandez-Guzman, 20-10589, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lorick, 20-10695, appeal from N.D. Tex.
  • per curiam (Ho, Oldham, Wilson), criminal, First Step Act
  • Vacating district court’s denial of motion for sentence reduction under the First Step Act, and remanding for reconsideration in light of Shkambi opinion, supra.

• Rodgers v. Smith, 20-10922, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), Title VI
  • Affirming dismissal of plaintiff’s claim of Title VI discrimination in housing for failure to state a claim.

• Harrison v. Klein Independent School District, 20-20115, appeal from S.D. Tex.
  • per curiam (Haynes, Duncan, Engelhardt), Americans with Disabilities Act, Rehabilitation Act
  • Affirming dismissal of claims of failure to accommodate and hostile educational environment discrimination claims asserted under Title II of the ADA and Section 504 of the Rehabilitation Act.

• Peterson v. Jones, 20-20130, appeal from S.D. Tex.
  • per curiam (Higginbotham, Costa, Oldham), Rule 60
  • Affirming denial of Rule 60(b)(4) motion that argued that a sanctions order the district court issued more than four years ago is void for lack of subject matter jurisdiction.

• U.S. v. Rodriguez, 20-20282, appeal from S.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Miller v. Target Corp., 20-20415, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), tort, defamation
  • Affirming summary judgment dismissal of defamation and malicious prosecution claims against store by plaintiff accused of theft.

• U.S. v. Cardwell, 20-30044, appeal from W.D. La.
  • per curiam (Wiener, Southwick, Duncan), criminal, restitution
  • Affirming order of foreclosure on property to satisfy restitution sentence.

• U.S. v. Sims, 20-30294, appeal from E.D. La.
  • per curiam (Haynes, Willett, Ho), criminal, First Step Act
  • Affirming denial of motion for sentence reduction under the First Step Act.

• U.S. v. Hatton, 20-30494, appeal from W.D. La.
  • per curiam (Ho, Oldham, Wilson), criminal, First Step Act
  • Vacating district court’s denial of motion for sentence reduction under the First Step Act, and remanding for reconsideration in light of Shkambi, supra.

• U.S. v. Mendoza-Hernandez, 20-40032, appeal from S.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Escobedo v. Guitierrez, 20-50365, appeal from W.D. Tex.
  • per curiam (Dennis, Southwick, Engelhardt), prisoner suit
  • Dismissing appeal of dismissal of § 1983 suit as frivolous.

• U.S. v. Alvarado-Guitierrez, 20-50419, appeal from W.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Contreras, 20-50575, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Evaro, 20-50633, appeal from W.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hernandez-Rodriguez, 20-50701, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Granting summary affirmance of 37-month sentence for illegal reentry after removal.

• U.S. v. Webb, 20-50703, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sufficiency of evidence
  • Affirming conviction for being a felon in possession of a firearm.

• U.S. v. Quinones, 20-50724, appeal from W.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Soto-Rueda, 20-50764, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Granting summary affirmance of 24-month sentence for illegal reentry after removal.

• U.S. v. Gomez, 20-50865, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal
  • Affirming conviction of violation of supervised release.

• U.S. v. Lugo-Soto, 20-50871, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming sentence for illegal reentry.

• U.S. v. Godinez, 20-60596, appeal from S.D. Miss.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Dismissing appeal of 262-month sentence on guilty plea to conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, on basis of appeal waiver.

• U.S. v. Stevens, 20-60613, appeal from S.D. Miss.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming 108-month sentence on guilty plea to possession with intent to distribute 100 kilograms or more of marijuana and aiding and abetting.