Take the Fifth

Designated for publication

• Whole Woman’s Health v. Paxton, 17-51060, appeal from W.D. Tex.
  • En banc (Owen, Jones, Smith, Stewart, Dennis, Elrod, Haynes, Graves, Higginson, Costa, Willett, Ho, Engelhardt, Wilson) (recused: Southwick, Duncan, Oldham)
  • Elrod and Willett, JJ., plurality (joined by Jones, Smith, Ho, Engelhardt, Wilson in full; concurred in judgment only by Owen and Haynes); Owen, C.J., concurring in judgment; Ho, J., concurring; Dennis, J., dissenting (joined by Stewart, Graves); Higginson, J., dissenting (joined by Costa); abortion law
  • Vacating district court’s permanent injunction against enforcement of Texas SB8, which banned “live dismemberment” dilation-and-evacuation abortion between the 15th and 22nd weeks of pregnancy, requiring the use of alternative medical methods for D&E; and reversing the district court’s finding of unconstitutionality of SB8 and rendering judgment dismissing plaintiffs’ suit.
  • The plurality described the banned procedure in SB8 as follows: “What SB8 does do is prohibit one particular evacuation method in one particular set of circumstances—live dismemberment by forceps when a medical emergency does not exist. Thus, doctors may comply with SB8 by using only suction to achieve fetal death and remove the fetus—or, at later gestational ages, using either suction or a digoxin injection to cause fetal death before forcep-dismemberment and removal.” The district court issued a TRO, and then permanent injunctive relief on a finding of facial unconstitutionality. A Fifth Circuit panel, Judge Dennis in the majority and Judge Willett dissenting, affirmed the district court’s ruling after first holding the appeal in abeyance pending the resolution of June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020), and this en banc rehearing followed.
  • The plurality articulated the “large fraction” test for constitutionality of abortion restrictions that is distilled from Casey and Carhart: “When a plaintiff claims that an abortion law is facially invalid—as opposed to unconstitutional as applied to her—we ask whether the law would impose a substantial obstacle on a ‘large fraction’ of women in the relevant circumstances. We first determine the denominator of the fraction by identifying the number of women ‘for whom the law is a restriction, not the [number of women] for whom the law is irrelevant.’ After determining that proper denominator, courts should deduce the numerator—the number of women for whom the abortion regulation would impose an ‘undue burden.’ The plaintiff bears the burden of proving a large fraction—and that burden is ‘heavy.'” (Internal citations and footnotes omitted).
  • The plurality held that, for purposes of the undue burden test, the June Medical decision (under Chief Justice Roberts’ concurrence as the narrowest and controlling opinion) requires only an examination of the challenged rule for whether it presents a substantial obstacle to abortion access, and not a balancing against the interests served by the restriction. “Under the Chief Justice’s controlling concurrence in June Medical, the district court erred by balancing SB8’s benefits against its burdens. That is reason alone to reject the district court’s findings.”
  • The plurality then held that the district court erred in disregarding the state’s interests in enacting SB8. The plurality noted those interests were in promoting the physical and psychological health of the woman; in preserving the dignity of the life of the fetus; in promoting societal and medical ethics; and in ensuring informed medical consent. “The district court cast aside all of these interests—even though each was recognized as legitimate and substantial in [Carhart] and even though a ‘central premise of [Casey] was that the Court’s precedents after Roe had “undervalue[d] the State’s interest in potential life.”‘ [Carhart], 550 U.S. at 157 (quoting Casey, 505 U.S. at 873).”
  • The plurality also held that the district court erred and contravened Roe by “deeming the abortion right ‘absolute'” and by placing the burden on the state “by holding that SB8 was unconstitutional because live dismemberment is a common abortion method in the second trimester. This was exactly backwards. Since Casey, we have recognized that abortion doctors do not get to set their own rules. They are not permitted to self-legislate or self-regulate simply by making an abortion method ‘common.'” The plurality also held that the district court’s definition of “substantial”–as “no more and no less than ‘of substance'”–would render nearly all abortion restrictions unconstitutional. “In sum, the district court committed numerous legal errors and contravened Casey, Gonzales, and Hellerstedt by balancing SB8’s benefits against its burdens; diminishing the State’s compelling, numerous, and evidence-supported interests in preventing live-dismemberment abortions; granting the right to abortion an ‘absolute’ status; placing the burden of proof on the wrong party; and erroneously defining ‘substantial’ in ‘substantial obstacle.'” Accordingly, the plurality held that it did not need to accord deference to the district court’s factual findings in the abuse-of-discretion analysis.
  • The plurality found that the district court erred in describing the banned procedure as the “standard D&E.” The plurality also found that the district court erred in finding that the alternative procedures would place an undue burden on the woman. “Contrary to the district court’s holding, the record shows that performing a D&E that complies with SB8, using either suction or digoxin, is safe, effective, and commonplace.” The plurality found that the delay that may result from the use of these alternatives was not an undue burden, nor was the premise that some of the procedures may be considered experimental at certain points in the second trimester. “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”
  • The plurality then held that the district court erred in its large fraction analysis. “The district court concluded that prohibiting only one method of D&E (live dismemberment by forceps) is unconstitutional all of the time because the other methods that achieve fetal death (like digoxin) do not work some of the time. This distorts the State’s burden. The State need not prove that every alternative works every time for every woman. As Gonzales instructs, a prohibition of a particular method is ‘permissible’ when ‘a woman [can] still obtain an abortion through an acceptable alternative method.’ Preterm-Cleveland, 994 F.3d at 534. The plaintiffs’ own practices show that such alternatives are available and widely used for the vast majority of abortions in most of the relevant weeks of gestation. Thus, the plaintiffs cannot show that SB8 poses a substantial obstacle in a large fraction of cases.”
  • Chief Judge Owen concurred in the judgment only. She opined, “Even were an additional 24-hour delay a substantial obstacle, there would not be such a delay for a large fraction of women seeking an abortion at 15 to 22 weeks of gestation.” She would have found that reversal was justified whether or not a balancing-test approach was used (i.e., regardless of whether Chief Justice Roberts’ concurrence in June Medical were treated as the controlling approach).
  • Judge Ho joined in the plurality opinion in full, but separately concurred “to focus on one particular error.” He wrote, “Constitutional challenges to abortion laws are governed, not by the text or original meaning of the Constitution, but by decisions of the Supreme Court. … So we focus on Supreme Court precedent. That precedent recognizes that scientists and medical experts disagree over a number of issues affecting abortion policy in states across the country. And when experts disagree, legislators decide—and judges defer.” He emphasized his concern that the district court erred by not deferring to the legislature where there was disagreement in the record as to the science regarding safe alternative methods. “The bottom line is this: Of course we should ‘follow the science.’ But that doesn’t mean we should always blindly follow the scientists. Because, like the rest of us, scientists are, first and foremost, human beings. They’re susceptible to peer pressure, careerism, ambition, and fear of cancel culture, just like the rest of us—as courts have recognized. … Doctors and scientists deserve enormous respect. We ignore their advice at our peril. But we also follow them blindly at our peril.”
  • Judge Dennis dissented. “Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester. In an opinion that fortunately lacks fully binding precedential effect, the en banc plurality disregards the two major lessons of June Medical. First, it ignores on-point Supreme Court precedent in multiple ways. For one, the plurality wrongly declares a single Justice’s concurrence to be precedential in order to impose a variation of the undue burden standard that the Court has explicitly rejected. See Hellerstedt, 136 S. Ct. at 2309. And, even under the plurality’s preferred standard, the Supreme Court has already decided this exact case, holding that a Nebraska law was unconstitutional because it could be interpreted to be the sort of ban that the Texas statute openly embodies. Stenberg v. Carhart, 530 U.S. 914, 945(2000). Second, just as in June Medical, the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law, instead substituting its own reading of the evidence to make findings of fact in the first instance. This would be bad enough on its own, but the actual findings that the plurality makes are contrary to the great weight of the evidence in the record and place us at odds with virtually every other court to have considered the matter.” As to the large fraction analysis, Judge Dennis opines that “the plurality ‘bungl[es]’ the analysis itself, Plurality at 3, incorrectly minimizing the statute’s impact by wrongly including in its evaluation a large number of women whose lives will be wholly unaffected by SB8.” Wrapping it together, Judge Dennis writes, “Further burdening abortion access, many abortion providers will likely decline to perform later-term abortions rather than face the dilemma today’s ruling foists upon them: become a felon or do a risky procedure that is contrary to the doctor’s medical judgment regarding the patient’s best interests. This outcome is neither correct as a logical matter nor consistent with our duties as a lower federal appellate court, and I respectfully but emphatically dissent.”
  • Judge Higginson dissented, primarily taking aim at the plurality’s decision not just to vacate but to reverse and render. “First, given our court’s plurality opinion’s conclusion that the district court erred because it assessed SB8 under a ‘balancing test,’ without the benefit of Chief Justice Roberts’ ‘narrower version (only burdens) of the plurality’s test (benefits and burdens),’ we should do no more than remand to the district court, confident that it will perform its role finding and applying facts to rules of law we clarify. This leaves us in our lane, not arrogating to ourselves the job district judges perform: above all weighing witness testimony, especially expert witness testimony, elicited by talented, opposing counsel during a week-long trial. … Second, … what we should not do is what we recently were admonished not to do in June Medical Services v. Russo, 140 S. Ct. 2103, 2121, (2020): reweigh facts and witness credibility ourselves, here relying selectively on unspecified portions of transcripts from a five-day bench trial where plaintiffs’ expert testimony was heard, and credited or discredited, by a district judge present to observe witness demeanor.”

• Campos v. Steves & Sons, Inc., 19-51100, appeal from W.D. Tex.
  • Southwick, J. (Barksdale, Southwick, Graves), Graves, J., dissenting in part; Family and Medical Leave Act
  • Reversing summary judgment dismissal of FMLA retaliation claim, but affirming summary judgment dismissal of employee’s state-law disability-discrimination and retaliation claims and FMLA interference claim.
  • The Court held that the district court did not err in dismissing the plaintiff’s state-law disability discrimination claim because he failed to present a prima facie case that he was qualified for either available position after his surgery. Aside from his own testimony that he was qualified, he had only relied on a release-to-work document signed by a licensed vocational nurse, which had been objected to as unauthenticated and as to which the plaintiff had presented no argument that it could be authenticated. The Court also found that the plaintiff’s testimony that he was qualified to return to work was undermined by statements he made subsequently in seeking Social Security disability benefits.
  • The Court held that taking FMLA leave is not a protected activity under the Texas Labor Code for purposes of a state-law retaliation claim.
  • For purposes of his FMLA retaliation claim, the Court held that the plaintiff had failed to show he was prejudiced by the lack of an FMLA Designation Notice, and that there was no per se FMLA interference from the lack of the notice. The Court also held that there was no interference claim arising from a text conversation with his supervisor that could have been interpreted as communicating that the plaintiff would not have a job when he recovered from his surgery, because the company immediately communicated to clarify the supervisor’s texts and assure the plaintiff that his position was being preserved for him.
  • However, as to the plaintiff’s FMLA retaliation claim, the Court held that the plaintiff had made a prima facie case, as his termination within one month of his return from FMLA leave was close enough temporally to support a causal connection. As to the employer’s purported non-retaliatory reasons for termination, the Court held that the plaintiff had created genuine issues of material fact. The Court held that there was deposition testimony supporting that the plaintiff had provided the employer with a right-to-return form. The Court held that there was an issue as to whether the plaintiff had exhausted his FMLA leave because the employer had failed to provide the Designation Notice. And the Court held that ‘[t]here are recorded conversations and deposition testimony that leave unanswerable the question of whether there was in fact an offer of another position and a rejection.”
  • Judge Graves dissented in part. He would have held that the district court also erred in dismissing the state law discrimination and retaliation claims.

• Texas Entertainment Association, Inc. v. Hegar, 20-50262, appeal from W.D. Tex.
  • Wilson, J. (Stewart, Higginson, Wilson), First Amendment, Equal Protection, Due Process, Tax Injunction Act, standing
  • Affirming in part and reversing in part summary judgment in favor of plaintiff association representing the interests of “latex clubs” to enjoin enforcement of a “Clothing Rule,” which extended the $5/patron fee imposed on nude dancing establishments to the latex clubs.
  • The Court first held that it the district court did not err in holding that the Texas Entertainment Association (“TEA”) had associational standing to challenge the state comptroller’s redefinition of “nude” to include the “latex clubs” that were members of TEA. The Court also held that TEA had standing under the Tax Injunction Act, because the $5/patron fee assessed against the clubs was properly deemed a “fee” rather than a “tax.” “It is undisputed that the SOBF was imposed by the legislature. Although we agree with the district court that this fact moved ‘the assessment on the spectrum closer to a classic tax,’ it is not dispositive. In enacting the SOBF, the Texas legislature used the word ‘fee’ instead of ‘tax’ within the statute itself…. Although labels may not be dispositive, the statutory text actually chosen by the legislature is the best yardstick of the legislature’s intent. … By its terms, the SOBF could be avoided by simply refraining from allowing the consumption of alcohol in the presence of nude entertainment. Such a limited scope of activity weighs in favor of the SOBF’s classification as a fee, not a tax, because the vast majority of the community at large is unaffected by the SOBF. … Finally, the SOBF clearly serves a regulatory purpose.”
  • The Court next held that the suit for injunctive relief against the state comptroller to enjoin collection of the SOBF fit squarely within Ex parte Young for purposes of avoiding Eleventh Amendment immunity.
  • The Court further held that abstention doctrines and comity principles did not render improper the district court’s exercise of jurisdiction.
  • Turning to the merits, the Court held that the district court did not err in granting summary judgment to TEA on its First Amendment claim, because the comptroller had not provided any evidence that the clothing rule, extending the fee for nude dancing establishments to include those where the dancers wore opaque latex coverings, was justified by a content-neutral rationale.
  • The Court then held that the district court did not err in granting partial summary judgment on TEA’s due process claim, holding that the retroactive applicability of the clothing rule violated latex clubs’ due process rights as they had no notice they would be subject to the SOBF prior to the imposition of the clothing rule.
  • The Court, however, disagreed with the district court’s grant of summary judgment on TEA’s Equal Protection claim. “In a nutshell, latex clubs and the district court’s chosen analogues, ‘sports bar[s] with scantily[ ]clad … waitresses,’ are not ‘in all relevant respects alike.’ Nordlinger, 505 U.S. at 10. More similar to the latex clubs are traditional nude dancing establishments, which as sexually oriented businesses are subject to the SOBF with or without the Clothing Rule. The record indicates that the latex clubs began as nude dancing establishments and ‘chose to become latex clubs, rather than provide topless entertainment, in order to avoid the $5 fee.’ Like traditional nude dancing establishments, latex clubs’ primary purpose remains to showcase erotic dancing with nude (or almost nude) performers. By contrast, the ‘bar and grill type establishments’ that TEA purports to be similarly situated to its members are fundamentally sports bars and grills, whose primary purpose centers around food and beverage service, even if some may feature scantily clad waitresses.”

• State of Texas v. Biden, 21-10806, appeal from N.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), immigration, administrative law, Administrative Procedure Act
  • Denying motion for stay pending appeal of district court judgment finding that the Department of Homeland Security violated the Administrative Procedure Act in purporting to rescind on June 1, 2021 the Migrant Protection Protocols DHS had issued in December 2018.
  • The MPP was issued by the Trump administration DHS, and enrolled immigrants who crossed the boarder illegally in the MPP, to be returned to Mexico during the pendency of their immigration proceedings rather than releasing them into the United States while their immigration proceedings went forward. DHS also entered into an Agreement with Texas regarding cooperation in immigration enforcement. On inauguration day, the Biden administration DHS issued a memo that it was suspending the placement of immigrants into MPP while the program was under review, and notified Texas it was withdrawing from the Agreement. On June 1, 2021, while this legal challenge to the January 20 memo by Texas and Missouri was pending, DHS issued a final decision ending the MPP. The district court then consolidated a challenge to that action with the initial challenge filed by the states and conducted a bench trial, after which it held that the DHS had violated the APA in rescinding the MPP.
  • The Court held that the government failed to show a likelihood of success on the merits, rejecting the government’s arguments that it would succeed on the justiciability grounds of standing and non-reviewability. The Court held that there was no clear error in the eight enumerated points of concrete burden on Texas from rescission of the MPP. In addition to burdens attendant to providing drivers license services to the increased number of immigrants, the Court held that “the district court’s unchallenged factual findings regarding educational, healthcare, and correctional costs provide equally strong bases for finding cognizable, imminent injury.” The Court also held that the injury was fairly traceable to rescission of the MPP and would be remediable by injunction of that rescission; then held that standing was also justified by the “special solicitude” to the states on standing.
  • The Court then held that the the June 1 memorandum was a “final agency action” meriting review and not merely an unreviewable “policy statement.” The Court also held that the memorandum was more than an unreviewable non-enforcement decision, as “the termination of MPP will necessarily lead to the release and parole of aliens into the United States.”
  • The Court also held that the government was unlikely to succeed on the merits of the appeal on the APA issues. “[W]hen terminating MPP in the June 1 Memorandum, the Secretary failed to consider several ‘relevant factors’ and ‘important aspect[s] of the problem.’ Michigan v. E.P.A., 576 U.S. 743, 750, 752 (2015). These include (a) the States’ legitimate reliance interests, (b) MPP’s benefits, (c) potential alternatives to MPP, and (d) § 1225’s implications. These four omissions likely doom the Government’s appeal.”
  • The Court then held that the government failed to show an irreparable injury from imposition of the injunction to put the MPP back into place in good faith. “What the Government cannot do, the district court held, is simply release every alien described in § 1225 en masse into the United States. The Government has not pointed to a single word anywhere in the INA that suggests it can do that. And the Government cannot claim an irreparable injury from being enjoined against an action that it has no statutory authorization to take.” The Court also rejected the government’s position that it would have difficulty reinstating MPP because it had spent months already unwinding the infrastructure of MPP. “That understandably would make it harder for DHS to restart MPP on Saturday. But it also makes DHS’s legal position dramatically weaker. It is a fundamental precept of administrative law that an administrative agency cannot make its decision first and explain it later. Insofar as DHS concedes that its June 1 Memorandum is a post hoc rationalization for a decision that it made many months earlier, it has conceded that the June 1 Memorandum is arbitrary, capricious, and not a good faith explanation for its decision.” (Internal citations omitted).

Unpublished

• U.S. v. Burris, 17-10478, appeal from N.D. Tex.
  • per curiam (Wiener, Graves, Ho), criminal, Armed Career Criminal Act, sentencing
  • On remand from the U.S. Supreme Court, vacating sentence based on a finding that simple robbery was a “crime of violence” under the ACCA, and remanding for resentencing.

• U.S. v. Webb, 19-11263, appeal from N.D. Tex.
  • per curiam (King, Costa, Ho), criminal, Miranda rights
  • Affirming conviction and sentence for kidnapping.

• U.S. v. Ramos-Perez, 19-40997, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Jimenez v. Travis County Sheriff’s Department, 19-51191, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), 1983, pretrial detention
  • Affirming dismissal of claims arising from pretrial detention.

• U.S. v. Frantzen, 20-10915, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Rambo, 20-11129, appeal from N.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Cushenberry v. Cowan, 20-30135, appeal from M.D. La.
  • per curiam (Southwick, Graves, Costa), prisoner suit
  • Dismissing as frivolous appeal from dismissal of prisoner’s deliberate indifference claims.

• U.S. v. Perez-Juarez, 20-40497, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Fuentes, 20-40621, appeal from S.D. Tex.
  • per curiam (Higginbotham, Duncan, Engelhardt), criminal, sentencing
  • Affirming sentence on conviction of sexual abuse of a ward.

• U.S. v. Banks, 20-50895, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Hasan v. Garland, 20-60464, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Denying Bangladeshi citizen’s petition for review of BIA order affirming the immigration judge’s (“IJ”) adverse credibility determination and denial of his applications for asylum, withholding from removal, and protection under the CAT.

• U.S. v. Gamez-Palma, 21-10093, appeal from N.D. Tex.
  • per curiam (WIener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rodriguez-Macedo, 21-10197, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Granting summary affirmance of 36-month sentence for conviction of illegal reentry.

• U.S. v. Jackson, 21-10221, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Affirming 240-month sentence on conviction of distribution and receipt of child pornography.

• Doucet v. Danos & Curole Staffing, L.L.C., 21-30034, appeal from E.D. La.
  • per curiam (Wiener, Dennis, Haynes), breach of contract, jurisdiction
  • Affirming denial of Rule 60(b)(4) motion after judgment of dismissal, finding that district court had subject matter jurisdiction over removed breach of contract claim.

• U.S. v. Olivares, 21-40115, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Diaz, 21-50099 c/w 21-50100, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Granting summary affirmance of 30-month sentence and conviction for illegal reentry.

• U.S. v. Villasana-Borrego, 21-50157, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
  • Granting summary affirmance of 37-month sentence on conviction of illegal reentry.

• U.S. v. Moreno-Herrera, 21-50194, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Granting summary affirmance of 16-month sentence on conviction for illegal reentry.

• U.S. v. Munoz-Cano, 21-50202, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, sentencing
  • Granting summary affirmance of 16-month sentence on conviction for illegal reentry.