July 15, 2021 opinions

Designated for publication

  • Planned Parenthood Gulf Coast, Inc. v. Phillips, 18-30699, appeal from M.D. La.
    • Elrod, J. (Higginbotham, Elrod, Ho), abortion law, § 1983, sovereign immunity
    • Affirming in part and reversing in part district court’s denial of motion to dismiss on sovereign immunity grounds suit by Planned Parenthood against the director of the Louisiana Department of Health for unlawfully declining to act on Planned Parenthood’s application for a license to provide abortion services in Louisiana.
    • The Court first held that it had appellate jurisdiction over the denial of the motion to dismiss under the collateral order doctrine due to the state’s consistent invocation of sovereign immunity.
    • As to the state’s sovereign immunity claim, the Court held that the first and third prongs of the Ex parte Young doctrine were satisfied, “because the state official is sued in her official capacity and the plaintiffs seek prospective relief.” The second prong is whether “the plaintiffs allege violations of federal law such that the Ex parte Young exception to sovereign immunity allows this lawsuit to proceed in federal court, or do the plaintiffs allege only violations of state law such that sovereign immunity requires dismissal of the entire lawsuit?” The plaintiffs argued that they were alleging violations of federal constitutional rights of equal protection, substantive due process, and procedural due process, and were seeking injunctions directing the state to not withhold approval of the license, to promptly rule on their application “in accordance with all applicable constitutional requirements,” or to grant the license. The state argued that Planned Parenthood’s claims were all state-law claims “disguised as federal claims.”
    • The Court held that “the plaintiffs have established federal jurisdiction on their requested injunction to ‘promptly rule.'” However, the Court held that the two alternative forms of injunctive relief, to grant Planned Parenthood a license of “not withhold approval” of the license, were “fundamentally different,” because “plaintiffs have no free-standing ‘federal right’ to an abortion-clinic license.” The Court identified the right behind those two forms of injunctive relief as a right under state law, which the federal court could not rule on under Pennhurst.
    • The Court declined to rule on issues of standing and Burford abstention, though it cautioned the district court to pay close attention to each element of those inquiries on remand.
  • U.S. v. Michalik, 20-50244, appeal from W.D. Tex.
    • Smith, J. (Smith, Stewart, Ho), criminal, search and seizure, sufficiency of evidence
    • Affirming conviction for possession of child pornography.
    • The Court found no error in the district court’s denial of a motion to suppress the defendant’s statements from a pre-arrest interview and images found on his work laptop. The Court held that the interview, which lasted approximately an hour but was conducted with the defendant sitting in the front passenger-seat of an agent’s car parked on the street near his house, was not a custodial interview that would have triggered Miranda protections. “Although an interview length of one hour weighs in favor of finding that it was custodial, an hour-long interview, alone, doesn’t render the questioning custodial. … The second factor—the location of the questioning—suggests that the interview was not custodial.” The Court also held that the district court did not clearly err in crediting the credibility of the agents’ testimony that the questioning was not accusatory, but was cordial and that the defendant was cooperative. The Court also found no clear error in the district court’s finding that the presence of seven or eight armed agents did not equate to physical restraint of the defendant, and that the fact that defendant’s family members came and went during the search of his house and the interview show that there was freedom to leave.
    • The Court then held that the district court did not err in finding that the defendant freely consented to the search of his work laptop.
    • The Court held that the district court did not err in admitting into evidence a report that showed that the defendant actually accessed the files on his laptop, produced after the discovery deadline, because the government had created it only in response to an argument made by the defendant on the first day of trial. The Court also held that the district court did not abuse its discretion in allowing testimony from two experts regarding that report.
    • The Court then held there was sufficient evidence to support the element that the defendant “knowingly” possessed child pornography; that, despite defendant’s argument that others at his work could have accessed the material, the genesis of the investigation was the use of the IP address associated with his home to access the images, and that the defendant also confessed to searching for and accessing child pornography during his pre-arrest interview.

Unpublished

  • Harbor Healthcare System, L.P. v. U.S., 19-20624, appeal from S.D. Tex.
    • per curiam (Higginbotham, Elrod, Haynes), pre-indictment search
    • Reversing district court’s dismissal of Rule 41(g) pre-indictment motion for return of privileged documents seized by government in five searches of movant’s locations, and remanding for further proceedings.
  • U.S. v. Garza, 20-10575, appeal from N.D. Tex.
    • per curiam (Costa, Ho, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Brooks v. Mutual of Omaha Insurance Co., 20-20609, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Dennis), breach of contract
    • Affirming district court’s summary judgment dismissal of plaintiff’s breach of contract claims.
  • U.S. v. Jackson, 20-30415, appeal from M.D. La.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Affirming 33-month sentence on conviction of mail fraud and conspiracy to commit mail fraud.
  • U.S. v. Penny, 20-40378, appeal from E.D. Tex.
    • per curiam (Clement, Haynes, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Bryant, 21-10161, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Warren, 21-10298, appeal from N.D. Tex.
    • per curiam (Elrod, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Class v. TDJC Director Lorie Davis, 21-20028, appeal from S.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing appeal from dismissal of some but not all of prisoner’s claims by the district court.
  • U.S. v. Little, 21-20056, appeal from S.D. Tex.
    • per curiam (Clement, Haynes, Wilson), criminal, sentencing
    • Affirming defendant’s conviction and 12-month sentence on revocation of supervised release.