Take the Fifth

Designated for publication

• Cochran v. U.S. Securities and Exchange Commission, 19-10396, appeal from N.D. Tex.
  • Haynes, J. (Owen, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham, Wilson), joined by Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, Wilson, JJ. (Willett, J., concurring in judgment only); Oldham, J., concurring, joined by Smith, Willett, Duncan, Engelhardt, Wilson, JJ.; Costa, J., dissenting, joined by Owen, C.J., and Stewart, Dennis, Southwick, Graves, Higginson, JJ.; Securities and Exchange Act, Jurisdiction
  • On en banc rehearing, affirming in part, reversing in part, and remanding to district court, on determination that Securities and Exchange Act does not deprive federal courts of the jurisdiction to hear structural constitutional claims.
  • Enforcement action under the Exchange Act had been brought against the plaintiff by the SEC, and an ALJ had found against her. After the Lucia v. SEC decision by the Supreme Court held that all ALJs must be constitutionally appointed by one of three categories of officials and not administratively appointed by SEC staff members, the enforcement action was remanded and re-set in front of a constitutionally appointed ALJ. The plaintiff challenged the ALJ on a structural constitutional ground not reached by Lucia, arguing that the multiple layers of protection from removal of an ALJ unconstitutionally insulated the ALJs from the President’s Article II removal power, bringing this injunction action against the SEC. The district court held that, because sec. 78y of the Exchange Act permits only judicial review of final SEC orders, the federal courts did not have jurisdiction to hear challenges of ongoing SEC proceedings. A panel of the Court affirmed.
  • The Court held first that the text of 78y does not deprive the district court of jurisdiction to hear structural constitutional challenges. “§ 78y provides that only ‘person[s] aggrieved by a final order of the Commission’ may petition in the relevant court of appeals to review that final order. The statute says nothing about people, like Cochran, who have not yet received a final order of the Commission. Nor does it say anything about people, again like Cochran, who have claims that have nothing to do with any final order that the Commission might one day issue. Cochran’s removal power claim challenges the constitution of the tribunal, not the legality or illegality of its final order. Her injury has absolutely nothing whatsoever to do with a final order, and therefore her claim falls outside of § 78y.” The Court also held that the combination of permissive and mandatory terms in 78y showed that Congress knew how to limit jurisdiction over certain matters when it wanted to.
  • The Court then held that “[a]ny doubts we might have were put to rest by the Supreme Court’s decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010). In Free Enterprise Fund, the Supreme Court rejected the precise argument the SEC makes here—that the Exchange Act divests district courts of jurisdiction over removal power challenges.” The Court rejected the argument that Free Enterprise Fund was distinguishable because no SEC proceeding was ongoing in that case, while here the plaintiff was in the middle of her proceeding. The Court held that this was a “difference [that] lacks meaning: although Cochran’s case is farther along than in Free Enterprise Fund, she is still not guaranteed an adverse final order, as the SEC might resolve her case in her favor. Hence, just as in Free Enterprise Fund, it remains possible that Cochran will not be able to obtain judicial review over her removal power claim unless the district court hears it now.”
  • The Court held that, in addition, the Thunder Basin factors supported the conclusion that 78y did not strip federal courts of jurisdiction to hear structural constitutional challenges. “To sum up, Cochran’s removal power claim is wholly collateral to the Exchange Act’s statutory-review scheme, is outside the SEC’s expertise, and might never receive judicial review if district court jurisdiction were precluded.”
  • The Court also rejected the SEC’s ripeness argument. “There is no dispute that Cochran’s removal power claim is a pure issue of law, meaning that it is fit for judicial decision without any additional fact-finding. Further, if Cochran’s claim is meritorious, then withholding judicial consideration would injure her by forcing her to litigate before an ALJ who is unconstitutionally insulated from presidential control.”
  • Judge Oldham concurred. He agreed with the majority’s analysis, and wrote further to reject the dissent’s focus on the purposes and policies of the Exchange Act. “First, as should go without saying by now, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous. Here, the text is as unambiguous as can be. … Second, even if the dissent is correct to peer behind the text of § 78y, what lurks back there is profoundly disturbing. Section 78y reflects the thinking of men like Woodrow Wilson who argued that universal suffrage would make the three branches of government ignorant, indolent, and incapable of regulating modern affairs. Wilson’s solution? He wanted administrative agencies to operate in a separate, anti-constitutional, and anti-democratic space—free from pesky things like law and an increasingly diverse electorate.”
  • Judge Costa dissented. He opined that the majority’s decision “invents a new category of midenforcement review to go along with traditional pre- and postenforcement review. In doing so, it multiplies the number of court proceedings arising out of an SEC enforcement action and allows the anomaly of different courts of appeals’ reviewing the same agency proceeding. Worst of all, it turns constitutional avoidance on its head by making separation-of-powers claims a first rather than last resort in resolving cases.”

• U.S. v. Abdul-Ali, 19-60694, appeal from N.D. Miss.
  • Duncan, J. (Dennis, Elrod, Duncan), criminal, First Step Act
  • Affirming reduction of life sentence to 40-year sentence under the First Step Act.
  • The Court held that the district court did not err in only applying the First Step Act to one of the four federal drug crimes for which the defendant was convicted, and in only reducing the sentence to 40 years. The Court rejected as wholly unsupported the defendant’s argument “that, under the FSA, eligibility for a reduction on one offense allows a court to modify related, non-covered sentences.” The Court also found no abuse of discretion in the district court’s imposition of a 40-year sentence based on its recidivism concerns where the statutory range for the FSA-eligible count was 30 years to life.

• U.S. v. Ortega, 20-10491, appeal from N.D. Tex.
  • Engelhardt, J. (Davis, Higginson, Engelhardt), criminal, supervised release
  • Affirming imposition of supervised release special condition of participation in a residential treatment program, finding no error (plain or otherwise). The Court held that the modest delegation of authority to a probation officer to supervise various aspects of the prescribed participation in the residential treatment program were not impermissible delegations.

• Zurich American Insurance Co. v. Arch Insurance Co., 20-50966, appeal from W.D. Tex.
  • Oldham, J. (Davis, Haynes, Oldham), insurance
  • Reversing district court’s dismissal of claims against CGL carrier, holding that CGL carrier had a duty to defend a construction project’s general contractor. “Complicated as this might seem, the web of the insurance contracts creates a relatively straightforward question: Do the Developer’s claims against CTHC in the underlying arbitration potentially implicate Archer Western’s drainage-system work, such that Archer Western’s insurer (Arch) owes a duty to defend the additional insured (CTHC)? The answer is yes.”

• Cargill v. Garland, 20-51016, appeal from W.D. Tex.
  • Higginson, J. (Dennis, Higginson, Costa), National Firearms Act, gun control
  • Affirming district court’s dismissal of plaintiff’s challenge to ATF rule that bump stocks qualify as machine guns for purposes of the statutory bar on possession or sale of new machine guns, which was promulgated by the ATF in the wake of the Las Vegas mass shooting that resulted in 58 deaths and more than 500 wounded.
  • Under the National Firearms Act, a machine gun is statutorily defined as “any weapon which shoots … automatically more than one shot, without manual reloading, by a single function of the trigger.” The Court held that the ATF did not act arbitrarily in interpreting “function” as “pull,” where a bump stock allows the user to pull the trigger once and then the recoil action of the gun causes the trigger to continue to reset and fire until the user releases the trigger. The Court then held that the Rule offers a compelling interpretation of statute’s word, “automatically.” “Though not unreasonable on its face, the claim that a weapon does not fire ‘automatically’ if it requires any manual input from the shooter beyond a single pull of the trigger in order to fire more than one shot ultimately proves too much. True, a shooter firing a semiautomatic firearm equipped with a bump stock generally must maintain ‘constant forward pressure with the non-trigger hand on the barrel-shroud or fore-grip of the rifle.’ 83 Fed. Reg. at 66,516. However, as the district court explained, a prototypical machine gun requires the shooter to ‘keep constant pressure on the trigger with his shooting hand’s trigger finger.’ Cargill offers no reason why firearms that require the shooter to maintain pressure on the trigger function ‘automatically’ but firearms that require the shooter to maintain pressure on the barrel of the gun do not.”

• Pham v. TransAmerica Premier Life Insurance Co., 21-10028, appeal from N.D. Tex.
  • Higginson, J. (Dennis, Higginson, Costa), insurance
  • Reversing district court’s summary judgment in favor of insurer on claim arising from denial of life insurance coverage.
  • The Court held that there was a genuine issue of fact as to whether the date the insured signed a “numeric summary” reflecting a lower policy amount and premium was the date she completed signing all parts of the application, and therefore whether she was entitled to coverage under the Conditional Receipt.

• State of Texas v. Biden, 21-10806, appeal from N.D. Tex.
  • Oldham, J. (Barksdale, Engelhardt, Oldham), immigration, mootness, administrative law
  • Affirming district court’s vacatur of DHS’s decision to terminate the 2018 Migrant Protection Protocols and ordering DHS to implement in Protocols in good faith.
  • DHS issued a memo on January 20, 2021, suspending the MPP program, and a memo on June 1, 2021, terminating the MPP program. “DHS explained these two decisions in a series of increasingly lengthy memoranda; the first contained just a few sentences, while the last spanned 39 single-spaced pages.” Texas and Missouri challenged these two decisions in court; the district court determined that the June 1 decision violated the APA and an immigration statute, 8 U.S.C. § 1225, ordering DHS to implement the Protocols in good faith or take a new agency action complying with the law. “DHS chose not to take a new agency action,” instead appealing to the Court. “Then, on the Friday before oral argument—October 29, 2021—DHS issued two more memoranda (the ‘October 29 Memoranda’ or ‘Memoranda’) to explain the Termination Decision. These much longer documents purported to ‘re-terminate’ MPP—or at the very least, promised to do so after the lifting of the district court’s injunction. A few hours later, the Government informed our court that, in its view, the October 29 Memoranda had mooted this case.” The Court was un-amused. “Never mind that a case is moot only when the controversy between the parties is dead and gone, and the controversy between these parties is very much not dead and not gone. Never mind that the new memoranda simply reaffirmed the Termination Decision that the States had been challenging all along. And never mind that the Government’s theory of mootness would allow an administrative agency to permanently avoid judicial review by issuing an endless litany of new memos to ‘moot’ every adverse judicial ruling. The Government boldly proclaimed that DHS’s unilateral decision to issue new memoranda required us to give DHS the same relief it had previously hoped to win on appeal—namely, vacatur of the district court’s injunction and termination of MPP. DHS’s proposed approach is as unlawful as it is illogical. Under Supreme Court and Fifth Circuit precedent, this case is nowhere near moot. And in any event, the vacatur DHS requests is an equitable remedy, which is unavailable to parties with unclean hands. The Government’s litigation tactics disqualify it from such equitable relief.”
  • The Court was equally un-swayed by DHS’s arguments as to the reviewability of its June 1 decision. “DHS claims the power to implement a massive policy reversal—affecting billions of dollars and countless people—simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review. We address and reject each of the Government’s reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum. On the merits, the Termination Decision was arbitrary and capricious under the APA. That Act, among other things, requires courts to set aside agency actions that overlook relevant issues or inadequately explain their conclusions. We anchor our analysis to a recent Supreme Court decision that applied this doctrine in the immigration context. Under that precedent, this is not a close case.”
  • The Court also held that the June 1 decision independently violated the immigration statute. “That statute (among other things) requires DHS to detain aliens, pending removal proceedings, who unlawfully enter the United States and seek permission to stay. It’s true that DHS lacks the capacity to detain all such aliens. Congress, however, created a statutory safety valve to address that problem. Another part of § 1225 allows DHS to return aliens to contiguous territories, like Mexico, while removal proceedings are pending. That safety valve was the statutory basis for the Protocols. DHS’s Termination Decision was a refusal to use the statute’s safety valve. That refusal, combined with DHS’s lack of detention capacity, means DHS is not detaining the aliens that Congress required it to detain.”
  • The above quotes come from the Court’s preamble to the opinion, which itself runs to 117 pages.

• Sambrano v. United Airlines, Inc., 21-11159, appeal from N.D. Tex.
  • per curiam (Stewart, Haynes, Ho), Ho, J., dissenting; injunction, COVID-19
  • Denying plaintiff employees motion for injunction pending appeal, to enjoin defendant employer from implementing policy requiring unpaid leave for any employees not getting the COVID-19 vaccination without regard to religious exemptions.
  • Judge Ho dissented. “Forcing individuals to choose between their faith and their livelihood imposes an obvious and substantial burden on religion. Make no mistake: Vaccine mandates like the one United is attempting to impose here present a crisis of conscience for many people of faith. It forces them to choose between the two most profound obligations they will ever assume—holding true to their religious commitments and feeding and housing their children. To many, this is the most horrifying of Hobson’s choices. And it is a quintessentially irreparable injury, warranting preliminary injunctive relief.”

• Cannon Oil and Gas Well Services, Inc. v. KLX Energy Services, L.L.C., 21-20115, appeal from S.D. Tex.
  • Costa, J. (Dennis, Higginson, Costa), indemnification, choice of law
  • Affirming district court’s summary judgment in favor of Wyoming oil service company on issue of whether Wyoming’s law prohibiting indemnity agreements in oilfield relationships would govern over Texas’s limited allowance of such indemnity provisions, where the Wyoming company had entered into an agreement containing an indemnity provision and a Texas choice-of-law provision with a Texas oilfield equipment rental company. All of the work performed using the equipment occurred in Wyoming. The agreement was negotiated in Wyoming. And the incident giving rise to the claim underlying the claim for indemnity took place in Wyoming.

Unpublished

• Hernandez-Huinac v. Garland, 19-60637, petition for review of BIA order
  • per curiam (Jolly, Willett, Engelhardt), immigration
  • Denying Guatemalan citizens’ petition for review of BIA order dismissing their appeal of the denial by an Immigration Judge (IJ) of their application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Arias-Ardon v. Garland, 19-60801, petition for review of BIA order
  • per curiam (Barksdale, Costa, Engelhardt), immigration
  • Denying Honduran citizen’s petition for review of BIA order affirming denial of her applications for asylum and withholding of removal.

• Williams v. U.S., 20-10422, appeal from N.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), habeas corpus
  • Affirming dismissal of § 2241 petition for lack of jurisdiction.

• U.S. v. Walton, 20-10653, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Fields, 20-20491, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, Sixth Amendment
  • Affirming conviction of 15 criminal counts related to a scheme to obtain fraudulent income tax refunds for United States residents and nonresident taxpayers, and 108-month sentence, holding that defendant had validly waived constitutional right to conflict-free counsel.

• U.S. v. Lee, 20-30333, appeal from E.D. La.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Rickerson v. Rust, 20-40208, appeal from E.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), prisoner suit
  • Affirming dismissal of prisoner’s § 1983 suit arising from unauthorized search of cell and seizure of legal papers.

• Sanchez v. Moore, 20-40349, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Elrod), prisoner suit
  • Affirming dismissal of prisoner’s § 1983 suit that he was deprived of due process when he was required to forfeit his remaining time in the law library after he used the restroom.

• U.S. v. Santillan-Tabares, 20-50374, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Ruiz, 20-50815, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Morris, 20-50977, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Pineda-Rodriguez, 20-51031, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Affirming conviction of one count of conspiracy to transport illegal aliens and three counts of transportation of illegal aliens for the purpose of commercial advantage and private financial gain.

• Lemus-Ayala v. Garland, 20-60655, petition for review of BIA order
  • per curiam (Jolly, Willett, Engelhardt), immigration
  • Granting Salvadoran citizen’s petition for review of BIA order denying his motion to reopen removal proceedings and rescind an in absentia removal order, vacating BIA’s decision, and remanding for further proceedings.

• Alvine v. Garland, 20-60729, petition for review of BIA order
  • per curiam (Higginbotham, Higginson, Duncan), immigration
  • Denying in part and dismissing in part Cameroonian citizen’s petition for review of BIA order affirming the denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture.

• Pineda v. Garland, 20-60724, petition for review of BIA order
  • per curiam (Higginbotham, Higginson, Duncan), immigration
  • Denying Honduran citizen’s petition for review of denial of her application for asylum, withholding of removal, and protection under the CAT.

• U.S. v. Castro-Lopez, 21-10254, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Affirming 72-month sentence on conviction of illegal reentry.

• U.S. v. Gattis, 21-10351, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Affirming 72-month sentence on conviction of being a felon in possession of a firearm.

• U.S. v. Cardenas-Ramos, 21-10370, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Faz, 21-10459, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Palacios, 21-10574, appeal from N.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Intzin-Guzman, 21-10678, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Camacho, 21-20075, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Affirming consecutive 37- and 84-month terms of imprisonment on convictions of aiding and abetting interference with commerce by robbery and aiding and abetting brandishing a firearm during a crime of violence, and remanding to district court to provide further explanation or conduct further factfinding with regard to imposition of substance abuse-related special conditions of term of supervised release.

• U.S. v. Mederos-Urustige, 21-20179, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Miller v. Novo Nordisk, Inc., 21-20237, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), employment discrimination, Age Discrimination in Employment Act
  • Affirming summary judgment in favor of employer in age discrimination claim.

• Bissonet v. Westmont International Development, Inc., 21-20434, appeal from S.D. Tex.
  • per curiam (Wiener, Graves, Ho), subpoena, international law
  • Vacating district court’s issuance of subpoena under 28 U.S.C. § 1782 to effectuate extraterritorial discovery in case with foreign venue clause.

• Holmes v. Reddoch, 21-30164, appeal from E.D. La.
  • per curiam (King, Costa, Willett), § 1983
  • Vacating dismissal of plaintiff’s § 1983 claim as barred by Heck, and remanding for further proceedings.

• U.S. v. Alfaro-Aguilar, 21-40148, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Villarreal-De La Fuente, 21-40229, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Gutierrez-Romo, 21-40261, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rivera-Verdin, 21-40343, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. De Hoyos-Lopez, 21-40412, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hastings, 21-50171, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Pleasant, 21-50212, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Pascual-Mendez, 21-50434, c/w 21-50435, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Granting summary affirmance of conviction and sentence for illegal reentry and revocation of supervised release.

• U.S. v. Quimare, 21-50535, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
  • Granting summary affirmance of sentence on conviction of illegal reentry.

• U.S. v. Gray, 21-60142, appeal from N.D. Miss.
  • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
  • Affirming 90-month sentence on conviction of possession with the intent to distribute cocaine.