Take the Fifth

Designated for publication

• Planned Parenthood Gulf Coast, Inc. v. Phillips, 18-30699, appeal from M.D. La.
  • Elrod, J. (Higginbotham, Elrod, Ho), Ho, J., concurring; abortion law, sovereign immunity, Ex parte Young
  • Granting petition for panel rehearing, withdrawing opinion issued July 15, 2021, which had reversed in part the denial of dismissal on sovereign immunity grounds the plaintiff’s claims alleging the Louisiana Department of Health had unlawfully declined to act on Planned Parenthood’s application for a license to provide abortion services in Louisiana, and instead holding that “at least one of the plaintiffs’ claims for injunctive relief is a valid invocation of federal jurisdiction under Ex parte Young,” remanding to the district court for further proceedings.
  • The Court first held that it had jurisdiction over the appeal of the interlocutory ruling on sovereign immunity under the collateral-order doctrine. “[W]e hold that we have jurisdiction because the Department asserted sovereign immunity from this entire lawsuit. Simply put, the Department has always argued that a proper application of sovereign immunity would remove it from this litigation and require dismissal of all claims. We therefore have jurisdiction over this interlocutory appeal.”
  • The Court then held that Ex parte Young provided shelter from sovereign immunity in this case. “[S]overeign immunity is not boundless and one of its limits is the Ex parte Young doctrine. 209 U.S. 123 (1908). The doctrine grants a federal court jurisdiction over a lawsuit against a state official in his official capacity if the suit seeks prospective relief to redress an ongoing violation of federal law.” (Internal quotation marks omitted). “Here, the first and third criteria of Ex parte Young are satisfied, because the state official is sued in her official capacity and the plaintiffs seek prospective relief. Consequently, our task is to decide whether Ex parte Young’s second criterion has been satisfied: Do 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 Court held “that the plaintiffs have established federal jurisdiction for purposes of a Rule 12(b)(1) motion, at least on their requested injunction to ‘promptly rule.’ Under Rule 12(b)(1)’s straightforward inquiry, plaintiffs’ procedural due process and equal protection claims seeking an injunction directing the Department to rule on their license application satisfy Ex parte Young.” So, while the Court never expressly says that it is “affirming” the district court’s denial of the motion to dismiss, that is the effect of its ruling.
  • The Court then declined to exercise pendent appellate jurisdiction to rule on the Department’s ripeness and standing challenges. The Court nevertheless critiqued the plaintiffs’ ripeness and standing, and wrote, “We expect the district court to carefully consider each jurisdictional challenge—including whether and how they impact each of the plaintiffs and each of the claims—before proceeding to the merits.”
  • Judge Ho concurred, in order to “offer a few observations about some disparaging comments that Plaintiffs make throughout these proceedings. Plaintiffs repeatedly accuse Louisiana of bad faith and condemn its appeal as just ‘the latest step’ in its ‘illegitimate[]’ ‘years-long campaign’ of ‘animus toward abortion. But as the Supreme Court has made clear, ‘[m]en and women of good conscience can disagree … about the profound moral and spiritual implications of’ abortion. … Plaintiffs’ comments conflict with the principle that ‘both sides of the [abortion] debate deserve respect.'” (Internal citation omitted).

• Weinhoffer v. Davie Shoring, Inc., 20-30568, appeal from E.D. La.
  • Higginbotham, J. (Higginbotham, Southwick, Engelhardt), breach of contract, judicial notice, evidence
  • Reversing the district court’s evidentiary rulings that an exhibit showing auction terms that was not within the custody of the auction house but that was housed on a third-party auction administrator’s website was properly authenticated by testimony of an employee of the auction house, and that a copy of the auction terms obtained through use of the “Internet Wayback Machine” to access archived webpages was susceptible to judicial notice, and remanding for further proceedings.
  • As to the exhibit testified to by the auction house employee (Martin) that was housed on the third-party’s website, the Court held, “Martin had no personal knowledge of the terms applicable to the auction. Martin had to search a third party’s websit to obtain the terms because Henderson did not have them in its possession. Moreover, Martin’s testimony indicates that she was unfamiliar with Proxibid’s website and that she needed the assistance of a colleague to locate the terms. Thus, Martin’s authentication testimony only amounts to an affirmation of her memory that Exhibit 41 is what she found on the internet. Although the standard for authentication is low, Martin had inadequate direct knowledge to authenticate Exhibit 41.” The Court also held that, since the auction house was not the custodian of those auction terms, the hearsay exception for business records would not apply.
  • As to judicial notice of the archived website material, the Court observed, “None of our sister circuits have squarely addressed whether archival internet sources like the Wayback Machine possess the ‘high degree of indisputability [that] is the essential prerequisite’ of judicial notice.” The Court held that, here, where “there was no testimony to authenticate the archived webpage,” “the district court erred in taking judicial notice of the terms because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by Rule 201.”

Unpublished

• Chen v. Garland, 20-61111, petition for review of BIA order
  • per curiam (Higginbotham, Higginson, Duncan), immigration
  • Denying in part and dismissing in part Chinese citizen’s petition for review of BIA order dismissing her appeal from the Immigration Judge’s (IJ) denial of her motion to reopen.

• U.S. v. Mandujano, 21-10759, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.