Take the Fifth

Designated for publication

• U.S. v. Fuentes-Rodriguez, 15-40740, appeal from S.D. Tex.
  • per curiam (King, Costa, Willett), criminal, sentencing, Armed Career Criminal Act
  • On remand from the U.S. Supreme Court, vacating district court’s sentencing of defendant on conviction of illegal reentry under the ACCA, where the district court had found that the defendant’s prior conviction of family-violence assault under Texas law did not constitute an aggravated felony under 8 U.S.C. § 1326(b)(2).
  • The Court held that, nonetheless, defendant could have been sentenced to the same sentence under § 1326(b)(1) for illegal reentry after a conviction of a non-aggravated felony. To avoid future confusion, the Court remanded to the district court to reform the sentence to reflect conviction under § 1326(b)(1).

• Daves v. Dallas County, 18-11368, appeal from N.D. Tex.
  • Southwick, J. (joined in full by Jones, Smith, Elrod, Ho, Duncan, Engelhardt, Wilson, JJ., and as to all parts except I.D and II.C by Owen, C.J.); Higginson, J., concurring only in judgment to remand (joined by Dennis, Willett, JJ.); Haynes, J., dissenting (joined by Stewart, Graves, Costa, JJ.); Oldham, J., recused; 14th Amendment, standing, Younger abstention
  • Vacating preliminary injunction requiring the bail system in Dallas County, Texas, to require “notice, an opportunity to be heard and submit evidence within 48 hours, and a reasoned decision by an impartial decision-maker,” and remanding for limited purpose of determining abstention issues in the first instance.
  • Plaintiffs’ suit against the county, county district judges, county court at law judges, county magistrate judges, and the sheriff was based on 14th Amendment Due Process, Equal Protection, and substantive due process challenges that indigent arrestees in Dallas County are jailed without sufficient procedural safeguards and substantive findings to justify detention, including that “less intrusive conditions of release are inadequate to meet the state’s interest in pretrial detention” than the requirement of cash bail.
  • Defendants filed motions to dismiss based on lack of jurisdiction, raising threshold defenses, and rejecting the merits of the claims, including that none of the defendants is a county policymaker sufficient for municipal liability, that the plaintiffs lack standing, and that Younger abstention is appropriate.
  • The district court held that a ruling in a similar suit in Harris County–ODonnell v. Harris County, 882 F.3d 528 (5th Cir. 2018) (ODonnell I), controlled and justified granting of the preliminary injunction and certification of class. The district court did not rule on the preliminary issues of standing, sovereign immunity, or Younger abstention. The district court held that “the bail system in Dallas County results in automatic detention for indigent arrestees that can last for months ‘solely because an individual cannot afford the secured condition of release'”; that “the Plaintiffs demonstrated a likelihood of success on their procedural-due-process and equal-protection claims; but that they did not demonstrate a likelihood of success on their “claim that substantive due process requires a finding that no less intrusive condition of release would meet the state’s interests in pretrial detention.”
  • The district court’s injunction enjoined the county judges, the district judges, and the county; without being enjoined, the sheriff was authorized to decline to enforce orders requiring the the payment of prescheduled bail amounts if unaccompanied by a showing that an individual assessment was made and opportunity provided for formal review.
  • The Court held that “the time is now” for considering the justiciability and abstention questions, before getting to the merits of the preliminary injunction.
  • The Court held that the county court of law judges were county officers generally, but in addressing issues of bail were exercising judicial power of the state. The Court overruled the ODonnell panel opinions in this regard. The Court held that the county district court judges are state officers. However, the Court did not determine if these two sets of defendants could be proper defendants for claims of declaratory relief under Ex parte Young.
  • The Court held that there was no standing for the claims against the county court of law judges or the district judges, because the plaintiffs’ asserted injury–the treatment of pre-set bail “schedules” developed by those judges as binding by the magistrate judges–was speculative and therefore not fairly traceable to the actions of those judge defendants.
  • Because the Court held that there was no standing to sue the county judges, it held that there could be no liability for their actions by the county, and therefore vacated the currently formulated preliminary injunction.
  • The Court directed that standing to sue the magistrate judges for declaratory relief should be determined on remand to the district court. The Court also held that it would resolve the issue of standing against the sheriff and the county after the case returns from remand.
  • The Court held that the Younger abstention arguments had not been waived by defendants, but included in its remand order that the district court make a determination as to Younger abstention, such that the en banc court can “take a fresh look at Younger” after the remand.
  • Judge Higginson wrote an opinion concurring in the remand judgment only, opining that the Younger abstention resolution may be all that is required to dispose of the case. “[T]his case vitally implicates state criminal bail proceedings and the constitutional rights of pretrial detainees, yet everyone agrees there has been no analysis of circumstances which may be determinative of Younger abstention. Obtaining threshold Younger analysis from a district court in the first instance is more than prudent inquiry into Supreme Court abstention doctrine. Getting that analysis, threshold to reaching other difficult and outcome-determinative issues, is crucial to proper adjudication of those same issues, above all to avoid foreclosing avenues for vindicating the constitutional rights of pretrial detainees. By contrast, not remanding for threshold, first-time abstention inquiry hardens premature resolution of far-reaching issues the majority and dissent would reach, in this instance contracting constitutional guarantees federal courts should vindicate.”
  • Judge Haynes dissented, opining that the majority reclassifies vital merits issues as jurisdictional issues. “Lost in the shuffle of the majority opinion is this case’s bottom-line issue: in many circumstances, only those with money can get out of jail before trial. So, if you can pay for your crime of arrest, you’re free. If you can’t, you’re not. That is the core of the problem presented here. Plaintiffs—a class of arrestees who can’t pay—claim the bail system violates their due process and equal protection rights. Their arguments are supported by guarantees of individually determined bail enshrined in the Texas Constitution and by landmark Supreme Court opinions putting beyond all doubt that wealth-based detention is unconstitutional. But the majority opinion reframes the merits as jurisdictional issues and goes on to dismiss them. Then, without any party asking the en banc court to do so, the majority opinion remands on the question of abstention. The majority opinion errs in its treatment of these issues and reaches holdings inconsistent with binding decisions from the Supreme Court, with undisputed fact-finding from the district court, and with basic logic. In the process, it overrules our precedents—precedents designed to protect people from being locked up just because they’re poor.”

• June Medical Serices, L.L.C. v. Phillips, 21-30001, appeal from M.D. La.
  • Elrod, J. (Smith, Elrod, Oldham), sealed records
  • Vacating district court’s order denying in part Louisiana’s motion to vacate the district court’s orders to seal certain records in lawsuit filed to challenge Louisiana laws regulating abortions.
  • The Court found that many of the sealed documents were publicly available from other sources. “In the context of publicly available documents, those already belong to the people, and a judge cannot seal public documents merely because a party seeks to add them to the judicial record. We require information that would normally be private to become public by entering the judicial record. How perverse it would be to say that what was once public must become private—simply because it was placed in the courts that belong to the public. We will abide no such absurdity.”
  • The Court then held that the district court applied the wrong standard in its sealing decision. “Here, the district court’s only justification for sealing entire categories of documents was that those documents ‘fall[] squarely within the Protective Order.’ That a document qualifies for a protective order under Rule 26(c) for discovery says nothing about whether it should be sealed once it is placed in the judicial record.” The Court allowed a limited remand for the district court to determine within 30 days under the proper legal standard which documents it would order to remain sealed.

• U.S. v. Bautista-Gunter, 21-50057, appeal from W.D. Tex.
  • Higginson, J. (Jones, Higginson, Duncan), criminal, supervised release
  • Affirming district court’s denial of a motion to modify terms of supervised release to allow defendant–who had been convicted of possession of a firearm by a prohibited person and carrying a weapon on an aircraft–to engage in the occupation of a law enforcement officer.
  • The Court held that there was neither plain error nor an abuse of discretion in the district court’s denial of the motion to modify the terms of supervised release. “The condition at issue, and others like it, are imposed to protect the public, encourage defendant rehabilitation, and deter future criminal acts. See 18 U.S.C. §§ 3583(d)(1); 3553(a)(1)–(2). In this case, the law enforcement condition was designed to protect the public—and, notably, Bautista-Gunter himself—from his ‘obsession with police work’ and repeated pattern of feigning law enforcement prerogative and privileges. Permitting Bautista-Gunter to serve as a security guard would contradict the purpose of the release condition.”

• Newman v. Plains All American Pipeline LP, 21-50253, appeal from W.D. Tex.
  • Willett, J. (King, Costa, Willett), arbitration
  • Affirming district court’s denial of motion to compel arbitration by company where plaintiff inspectors had been sent to work, where company was a client of the plaintiffs’ employer, and the arbitration provision was part of the employment agreement between the plaintiffs and the employer, and not part of any contract between the plaintiffs and the client company.
  • Cypress Environmental Management hired the plaintiff, Newman, as a pipeline inspector, subject to an employment agreement with an arbitration provision. Newman was hired for a specific project for a designated client of Cypress’s, the defendant Plains All American Pipeline, but the employment agreement did not specifically name Plains. Newman was placed with Cypress’s client, Plains, but Newman did not sign any separate agreement with Plains. Newman subsequently brought a collective action against Plains under the FLSA. Plains moved to compel arbitration under the arbitration provision in Newman’s employment agreement with Cypress, which was denied.
  • The Court first held that it was properly in the domain of the district court to determine, not just that an arbitration agreement exists, but against what parties it is enforceable. “When a court decides whether an arbitration agreement exists, it necessarily decides its enforceability between parties. Therefore, deciding an arbitration agreement’s enforceability between parties remains a question for courts.”
  • The Court rejected Plains’ argument that it could enforce the arbitration provision in Cypress’s employment agreement with Newman as a third-party beneficiary to that contract. “Texas law presumes that noncontracting parties are not third-party beneficiaries.” The Court held that this presumption was not overcome here, because neither the employment agreement nor a “pay letter” fully spelled out that Plains was the intended beneficiary with rights to enforce. “Newman could have walked off the job ‘at any time for any reason,’ and Cypress could likewise have fired him. Nowhere did Newman’s Employment Agreement give Plains a clear and fully spelled out say in any of that.”
  • The Court also held that intertwined-claims estoppel, to the extent it exists under Texas law, does not entitle Plains to enforce the arbitration provision, because Plains and Cypress do not have the requisite “close relationship.” “Cypress and Plains admit they are independent business entities. And Newman has not treated Cypress and Plains as a ‘single unit’ in his pleading. In fact, Newman has not even sued Cypress; it intervened.”
  • The Court also held that Plains could not take advantage of artful-pleading estoppel. “Newman has not named any individual agent of Cypress’s in his complaint as a defendant. Rather, he has named a separate business: Plains. Nor is his suit in substance against Plains as a principal. He is suing Plains directly for its alleged FLSA violations. Therefore, we agree with Newman: Artful-pleading estoppel does not apply.”

Unpublished

• Maldonado v. Garland, 19-60523, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order dismissing her appeal from the denial of her application for asylum and withholding of removal.

• Garza v. Davis, 20-20533, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), prisoner suit
  • Affirming dismissal of prisoner’s suit for deliberate indifference to medical needs.

• U.S. v. Hayden, 20-40585, appeal from E.D. Tex.
  • per curiam (Jolly, Elrod, Oldham), criminal, sentencing
  • Affirming 180-month sentence and conviction for obstruction of justice.

• Muhammad v. Wiles, 20-50279, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, pretrial detention
  • Denying petition for rehearing, withdrawing prior opinion, and substituting new opinion affirming dismissal of claims for injunctive relief and dismissing for lack of appellate jurisdiction the appeal arising from claims that remain unadjudicated in the district court.

• Murodov v. Garland, 20-60628, petition for review of BIA order
  • per curiam (Smith, Stewart, Graves), immigration
  • Denying Uzbekistani citizen’s petition for review of BIA order upholding adverse credibility determination and dismissing appeal from IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture.

• Collins v. Garland, 20-60777, petition for review of BIA order
  • per curiam (Owen, Haynes, Costa), immigration
  • Dismissing in part and denying in part Cameroonian citizen’s petition for review of BIA order dismissing his appeal from the decision of the immigration judge (IJ) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture.

• Coomer v. Roth, 21-10182, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Willett), prisoner suit
  • Granting petition for panel rehearing of October 8 panel opinion that had vacated in part and affirmed in part the dismissal of prisoner’s suit arising from confiscation of property, and replacing that opinion with a new opinion again vacates in part and affirms in part the dismissal of his suit.

• U.S. v. White, 21-10451, appeal from N.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sufficiency of evidence
  • Affirming conviction of being a felon in possession of a firearm.

• U.S. v. Williams, 21-10471, appeal from N.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Affirming 110-month sentence on conviction of possessing a firearm after a felony conviction.

• Gilbert v. Cortazzo, 21-30176, appeal from E.D. La.
  • per curiam (Clement, Haynes, Higginson), judge disqualification
  • Affirming denial of motions to disqualify district court judge and magistrate judge.

• Carter v. Butler, 21-30216, appeal from W.D. La.
  • per curiam (Higginbotham, Stewart, Wilson), qualified immunity
  • Dismissing for lack of appellate jurisdiction a denial of qualified immunity summary judgment on the basis of genuine issues of material fact.

• Yarbrough v. U.S. Postal Inspector, 21-40089, appeal from S.D. Tex.
  • per curiam (Clement, Haynes, Higginson), frivolous appeal
  • Dismissing appeal as frivolous.

• U.S. v. Carmona, 21-40576, appeal from S.D. Tex.
  • per curiam (King, Costa, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.