May 2-3, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Consumer Financial Protection Bureau v. All American Check Cashing, Inc., 18-60302, appeal from S.D. Miss.
    • per curiam (Richman, Higginbotham, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham, Wilson); Jones, J., concurring (joined by Elrod, Duncan, Engelhardt, Oldham, JJ.); Oldham, J., concurring in judgment (joined by Engelhardt, J.); separation of powers
    • On en banc review of the 1292(b)-certified interlocutory question of whether the Consumer Financial Protection Bureau’s single-director structure, where the CFPB is led by a single director removable by the President only for cause, is an unconstitutional violation of Article II and the separation of powers, vacating the district court’s ruling that there was no constitutional violation, and remanding for further proceedings.
    • The panel had affirmed the district court’s ruling; then, after en banc rehearing was ordered sua sponte, the Supreme Court held that the CFPB’s single-director structure was unconstitutional in Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020). “The ruling in Seila Law decides the pure question of law raised by All American in this interlocutory appeal. … The interlocutory order denying judgment on the pleadings is therefore VACATED. The absence of a dismissal on the pleadings leaves the CFPB free to continue the enforcement action against All American, subject to further order of the district court. … We place no limitation on the matters that that court may consider, including, without limitation, any other constitutional challenges, and we express no view on the actions it should take in accordance with this opinion or otherwise.”
    • Judge Jones concurred in the vacatur, and pointed out that an as-yet unresolved constitutional issue is whether the CFPB’s structure violates the Appropriation Clause: “As this nation careens past $30 trillion in national debt, risking bankruptcy during our or our children’s lifetimes, one may ask: is there no institutional check on government spending? In fact, there is. The Constitution commands that ‘[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.’ U.S. Const. art I, § 9, cl. 7. The Constitution vests Congress not only with the power to tax and spend, but also removes ‘the option not to require legislative appropriations prior to expenditure.’ The Appropriations Clause embodies a fundamental separation of powers principle—subjugating the executive branch to the legislature’s power of the purse. And separation of powers is at the heart of our constitutional government in order to preserve the people’s liberty and the federal government’s accountability to the people. … A critical issue yet undecided in this appeal is whether the historically unique structure of the Consumer Financial Protection Bureau violates the Constitution because its funding is doubly removed from congressional review.” Judge Jones then engaged in a 40-page, in-depth analysis of the Appropriations Clause issue.
    • Judge Oldham concurred in judgment. He wrote to agree with Judge Jones’s concurrence and to opine that the procedural posture of the appeal as an interlocutory appeal under 1292(b) nevertheless gives the Court jurisdiction to entirely dismiss the CFPB’s enforcement action. “We thus have jurisdiction to consider any issue raised and decided below that is ‘fairly included’ in the district court’s March 21, 2018, order denying judgment on the pleadings. See Yamaha Motor, 516 U.S. at 205. That plainly includes All American’s Appropriations Clause argument, because All American argued it below and the district court rejected it in the precise order on appeal.”
  • Wearry v. Foster, 20-30406, appeal from M.D. La.
    • Dennis, J. (King, Dennis, Ho); Ho, J., dubitante; § 1983, absolute immunity
    • Affirming district court’s denial of absolute prosecutorial immunity to district attorney and sheriff’s detective defendants arising from plaintiff’s § 1983 claims that they deprived him of due process and a fair trial after they fabricated evidence and coerced a juvenile to adopt the false narrative that they had concocted in order to convict the plaintiff of capital murder.
    • “Wearry’s complaint alleges misconduct that is fundamentally investigatory in nature. When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions. Nor is Detective Foster absolutely immune. As the Supreme Court has made clear, a police officer is not entitled to the absolute immunity reserved for a prosecutor.”
    • Judge Ho issued a “dubitante” opinion. “There are good reasons to believe that the doctrine of absolute prosecutorial immunity is wrong as an original matter. So I am tempted to join the majority and hold that prosecutorial immunity does not foreclose this case from proceeding to the merits. But I am doubtful that governing precedent permits us to reach that result. The Supreme Court has repeatedly affirmed the doctrine of prosecutorial immunity. And our circuit has dutifully applied it—even in the face of disturbing claims of prosecutorial misconduct. So I write separately, first, to explain how governing precedent requires us to grant prosecutorial immunity in this case, and second, to note that I reach this conclusion reluctantly, because the doctrine of prosecutorial immunity appears to be mistaken as an original matter.”
  • Donahue v. Makar Installations, Inc., 21-30212, appeal from E.D. La.
    • per curiam (Davis, Smith; Engelhardt originally on panel but subsequently recused), negligence
    • Affirming summary judgment in favor of contractor that built concrete mezzanine platform, on plaintiff’s negligence claim after he subsequently was working on the platform and hit his head on an unguarded ceiling fan.
    • “Although Makar owed a duty to Donahue under Louisiana law to refrain from creating a hazardous condition, that duty is limited in scope, and plaintiffs failed to show there is a genuine issue of fact as to whether Makar breached that duty.”
  • Turner v. GoAuto Insurance Co., 22-30103, appeal from M.D. La.
    • per curiam (Elrod, Oldham, Wilson), Class Action Fairness Act
    • On 1453(c) appeal, affirming district court’s order remanding class action to state court.
    • Plaintiff had amended claim to assert a class action on behalf of “Louisiana citizens” who had been issued automobile policies by defendant insurer and had total losses valued using a certain valuation tool.
    • Court affirmed district court’s holding that the conclusory class definition that all class members were “Louisiana citizens” was sufficient–where defendant was also a citizen of Louisiana–to defeat minimal diversity.
  • In re A&D Interests, Inc., 22-40039, on petition for writ of mandamus to S.D. Tex.
    • per curiam (Smith, Higginson, Willett), Higginson, J., dissenting; Fair Labor Standards Act
    • Granting motion for mandamus to district court to decertify FLSA collective action comprised of exotic dancers who had worked at Heartbreakers Gentlemen’s Club over the previous three years.
    • The Court held that the certification order is not remediable on appeal, because the issue will be moot once opt-in notification under the certification order is sent.
    • The Court then held that the issue was important enough to justify mandamus relief, as it presented the issue of “whether district courts may send notice of a collective action to plaintiffs who have signed arbitration agreements.”
    • The Court then held that the petitioners showed that the district court clearly and indisputably erred in the certification decision because it “runs afoul of our holding in JPMorgan that district courts may not issue notice to potential plaintiffs who have signed valid, enforceable arbitration agreements.”
    • Judge Higginson dissented “because I do not see that this lower court—devotedly applying our JPMorgan decision two years ago in Kibodeaux and then, in the decision on review, equally devotedly applying [the intervening decision in] Swales—has been shown to have clearly and indisputably erred.”

Unpublished

  • Burch v. Mullin, 20-11106, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Willett), bankruptcy
    • Dismissing as frivolous appeal from district court’s dismissal of appeal from bankruptcy court for failure to pay filing fee.
  • Campos-Flores v. Garland, 20-60154, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for cancellation of removal.
  • Urbina-Urbina v. Garland, 20-60617, c/w 20-60618, c/w 20-60619, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Granting Honduran citizens’ petitions to review BIA order denying Petitioners’ motions to reopen, vacating BIA order and remanding for reconsideration.
  • Yanez v. Garland, 20-60888, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his cancellation of removal claim.
  • Lara-Serrano v. Garland, 20-61004, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Honduran citizen’s petition for review of BIA order affirming an Immigration Judge’s (IJ) denial of his application for cancellation of removal.
  • U.S. v. Aguirre, 21-10474, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 21-10753, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Coleman v. Combs, 21-10823, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Willett), prisoner suit
    • Dismissing as frivolous appeal from dismissal of claims.
  • U.S. v. Steen, 21-10950, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jenkins, 21-11033, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming conviction and sentence for possession of a firearm by a convicted felon.
  • U.S. v. Rangel, 21-11075, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ballow, 21-20417, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Hebrew v. Gonzalez, 21-20585, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), Title VII
    • Affirming dismissal of plaintiff’s Title VII claims, “explaining that individuals cannot be held liable under Title VII and that the Harris County Sherriff’s office is not a legal entity with the capacity to be sued.”
  • U.S. v. Deem, 21-30493, appeal from W.D. La.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Smoot, 21-30532, appeal from E.D. La.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Wilson, 21-30547, appeal from W.D. La.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 72-month sentence on conviction of possession of a firearm by a convicted felon.
  • U.S. v. Rachal, 21-30633, appeal from W.D. La.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tutt, 21-40494, appeal from E.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Franco, 21-50041, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Barron-Rivera, 21-50393, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Duarte-Munoz, 21-51114, appeal from W.D. Tex.
    • per curiam (Clement, Haynes, Higginson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Andrade v. Garland, 21-60316, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Mexican citizen’s petition for review of BIA order affirming the Immigration Judge’s (IJ) denial of his application for cancellation of removal.