Take the Fifth

Designated for publication

• U.S. v. Crittenden, 18-50635, appeal from W.D. Tex.
  • Costa, J. (joined by Richman, Jones, Smith, Stewart, Southwick, Haynes, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Elrod, J., dissenting (joined by Dennis, Graves, JJ.); new trial, criminal
  • Reversing new trial ordered by district court after jury had convicted defendant of drug conspiracy, and reinstating the jury verdict, after divided panel had initially affirmed the order of new trial.
  • Court noted it was resolving a “clash of deference,” “The great respect we owe jury verdicts versus the discretion trial judges have when exercising their Rule 33 power.” The Court held that, while the district court has discretion in ruling on a motion for new trial, it nevertheless can only exercise this discretion under this standard stated in Wright & Miller: “If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the court may set aside the verdict and grant a new trial. … The power to grant a new trial on this ground should be invoked only in exceptional cases, where the evidence weighs heavily against the verdict.”
  • Applying this standard, the Court held that the district court abused its discretion in ignoring evidence in the record that supported the verdict. “It is true that the ‘“’district judge, unlike us, was there throughout the trial.’ Dissenting Op. 14. But some other people sat through the trial: the twelve citizens who performed their civic duty as jurors. Because their verdict was not against the great weight of evidence, it was an abuse of discretion to erase it.”
  • Judge Elrod dissented. While agreeing with the standard applied by the majority, she disagree[d] with the majority opinion’s application of that standard to these facts.”

• Data Marketing Partnership, LP v. U.S. Department of Labor, 20-11179, appeal from N.D. Tex.
  • Oldham, J. (Smith, Elrod, Oldham), ERISA, administrative law
  • Affirming in part and vacating in part; affirming district court’s vacatur of DOL’s advisory opinion that plaintiff’s proposed health insurance plan for its limited partners would not qualify as an employee welfare benefit plan under ERISA; but vacating district court’s injunction against DOL refusing to acknowledge that the plaintiff’s proposed plans were governed by ERISA.
  • The Court held that the DOL advisory opinion was final agency action for purposes of the APA, because it was not subject to further agency review, and because it carried definitive legal consequences by removing the proposed plan from safe harbor from state insurance regulation.
  • The Court then held that the DOL advisory opinion was arbitrary and capricious because it failed to address its prior advisory opinions discussing the term “working owner” and its regulatory definition of that term in a related context.
  • The Court, however, vacated and remanded to the district court to further address interpretation of the terms “working owner” and “bona fide partner.”

• Sambrano v. United Airlines, Inc., 21-11159, appeal from N.D. Tex.
  • per curiam (Smith, Elrod, Oldham; vote against en banc rehearing by Richman, Jones, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.; vote for rehearing by Smith, Higginson, Costa, Willett, JJ.); Ho, J., concurring in denial of rehearing; Smith, J., dissenting from denial of rehearing; COVID-19, Title VII, injunction, publication
  • Denying rehearing en banc of panel decision reversing district court’s denial of preliminary injunction of airline’s policy of placing employees on indefinite unpaid leave unless they received COVID-19 vaccine, even where an employee objected to the vaccine on sincere religious grounds.
  • Judge Ho concurred in the denial of rehearing. He opined that the basis of the Court’s conclusion that there was irreparable harm was bound up not in the fact that a Constitutional harm was at issue, but in the fact that the harm was specifically to religious belief. “The injury would be entirely reparable by money damages if it was just about a loss of money. But it’s not. It’s about a loss of faith. And it’s about a crisis of conscience. You’re being coerced into sacrificing your faith in order to keep your job. No measure of damages makes sense in this scenario. To keep your job, you must violate your faith. How much money would it take for you to sell out your faith? To ask the question is to answer it. It seems obvious that violations of conscience are classic irreparable injuries. … [I]t seems obvious that the reason that First Amendment injuries are irreparable is not because it’s inflicted by the government rather than business. It’s because the very nature of religious belief is spiritual, rather than pecuniary. … To millions of people of faith—including the members of the Supreme Court—it’s painfully obvious that there’s no way to calculate damages to compensate for the loss of one’s soul.” He further opined that companies cannot prevent other citizens–their employees–from freely expressing their opinions in a democracy through corporate policy and the use of their market power to “foist … views onto society while avoiding the rigors of public debate in our democracy.” He does not opine whether his religious-liberty rule only applies to imposition of policies on employees with expressed religious beliefs or also to employees with expressed atheistic/non-religious beliefs.
  • Judge Smith dissented from the denial of rehearing. “I have two broad areas of concern, and I struggle to identify which is more significant. One involves the misapplication of an important federal statute and the muddling of Fifth Circuit precedent. The other implicates the integrity of this court’s decisionmaking process.” As to his statutory concern, Judge Smith laments that the majority does away with the need for EEOC exhaustion prior to a Title VII suit; allows of private Title VII plaintiffs to get preliminary injunctions and to do so on the basis of irreparable injury comprised of non-Title VII injury; “invents a new Title VII sin that it calls ‘ongoing coercion'”; and resurrecting a long-ago rejected Fifth Circuit case.
  • Judge Smith also lamented the panel majority’s (from which he had dissented) decision to not designate that opinion for publication, which he surmised lessened the chance of en banc rehearing. “The decision whether to publish is absolutely critical to the integrity of that process. For reasons that I won’t take the time to explain, this court decided that unpublished opinions released in or after 1996 would not be precedential. It makes some sense not to clutter reporting services with routine opinions that decide nothing new and affect only the immediate parties. That change generated considerable discussion. Along with a few other judges, I opposed that amendment even though, by then, all other circuits had chosen that path. We detractors warned, inter alia, that it would be too easy for any given panel majority to avoid the consequences of its decision—regardless of its importance—merely by adding the customary ‘do-not-publish’ footnote. That way, a panel would feel comfortable declaring the winner without worrying about how doing so might affect future cases. Or, for much the same reason, a panelist might condition his or her concurrence on making the opinion unpublish”

• State of Louisiana v. Biden, 21-30505, appeal from W.D. La.
  • Higginbotham, J. (Higginbotham, Dennis, Graves), administrative law
  • Vacating district court’s nationwide preliminary injunction against federal government’s pause in oil and gas lease sales on public lands and in offshore waters, and remanding.
  • On a procedural issue, the Court held that, “[a]lthough we typically do not entertain arguments raised for the first time in a reply brief, we will when a new issue is raised in the appellee’s brief and the appellant responds in the reply brief.” Substantively, the Court held that the district court’s preliminary injunction failed to meet Rule 65(d)’s requirements when it could not ascertain from the record precisely what conduct was being enjoined. “Our review of APA claims must begin by determining if there was final agency action. Where, as here, it is unclear what final agency action the district court predicated its order upon, we are unable to reach the merits of the appeal.”

• U.S. v. Harbarger, 21-40332, appeal from E.D. Tex.
  • Jones, J. (Jones, Southwick, Oldham), criminal
  • Reversing conviction for illegally possessing a “destructive device” under the National Firearms Act, on finding that NFA is unconstitutionally vague as applied.
  • Defendant was arrested for violating the NFA when a search of his truck revealed a narrow length of bamboo capped on one end with a penny and with a fuse at the other end, which he informed the arresting officers he used to remove beaver dams. Defendant was convicted under the NFA and sentenced to 72 months.
  • “The determinative issue in this appeal is whether an explosive-containing device falls within the NFA when it is susceptible of both innocent and destructive uses and not clearly designed as a weapon.” The Court held, “it is reasonable to conclude that when there is doubt whether a device that has some social value and legal use nonetheless falls within the NFA’s ambit, evidence of scienter or evidence that the device can be used solely for illegal purposes is necessary to sustain a conviction.”
  • Applying this standard, the Court held, “In light of the government’s wholly conclusionary case that the bamboo device was designed as a weapon or that it had no benign or social value, the conviction cannot stand. The evidence was insufficient to prove that the bamboo stick was an illegal explosive device ‘designed’ as a weapon. Unlike cases involving Molotov cocktails or improvised grenades (e.g. metal, PVC, or ceramic pipe bombs designed to fragment and violently disperse shrapnel or metal fragmentation), no published case has held that a small bamboo device like the one at issue here is prima facie a proscribed destructive device.”

• James v. The Cleveland School District, 21-60688, appeal from N.D. Miss.
  • Duncan, J. (Smith, Duncan, Oldham), Fourteenth Amendment, due process
  • Affirming district court’s dismissal of student’s Fourteenth Amendment due process claims that consolidation of schools under desegregation order unconstitutionally deprived her of her salutatorian ranking.
  • The Court held, “James alleges only a property interest, but she has no such interest in her class ranking or in the points awarded for her courses. This defeats both her procedural and substantive due process claims. That James did not end up class salutatorian may seem unfair. It was surely disappointing. But it was not unconstitutional.”

• Midship Pipeline Co. v. Federal Energy Regulatory Commission, 22-60225, petition for review of FERC order
  • Wilson, J. (Higginbotham, Haynes, Wilson), administrative law, Natural Gas Act
  • Granting petition for review, vacating FERC order to require determination of “reasonable cost” of remediation as beyond the statutory grant of authority to FERC, and remanding for further proceedings.
  • After a dispute between a landowner and a pipeline company as to the remediation of property impacted by the construction of a pipeline under a FERC order, FERC ordered an ALJ to determine the methods and scope of work to restore the property and the reasonable cost to complete those activities, while also acknowledging that it could not order the pipeline company to pay damages to the landowner. FERC stated that developing this record would assist it in evaluating what further remediation was required “and what further steps to take to resolve the issues here.”
  • The Court held that the challenge to the FERC order was ripe for review. The Court held that the challenged order was definitive, and therefore ripe for review, and also had substantive effect on the pipeline company as an ALJ determination of reasonable cost would likely dictate FERC’s ultimate decision.
  • The Court then held that FERC’s interpretation of the scope of its authority under the NGA was not subject to deference because its reasoning in the order was circular and conclusory.
  • The Court held that the NGA did not authorize FERC to order the determination of reasonable cost. “Notably, the NGA is silent as to the FERC’s power to determine costs (reasonable or otherwise) of restoration.”

Unpublished

• U.S. v. Navarro, 21-11024, appeal from N.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Vidrine v. Guillot, 21-30203, appeal from M.D. La.
  • per curiam (Smith, Elrod, Oldham), Elrod, J., dissenting in part; employment discrimination, Title VII
  • Affirming summary judgment dismissal of plaintiffs’ employment discrimination claims.
  • Judge Elrod dissented in part, on the basis that she believed there was a genuine dispute of material fact regarding whether the plaintiffs were subjected to severe or pervasive harassment based on their sex.

• U.S. v. Cardenas-Mendoza, 21-40673, appeal from S.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Simmons, 21-40810, appeal from E.D. Tex.
  • per curiam (Higginbotham, Graves, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez-Ramirez, 22-10035, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Lonero v. U.S., 22-10317, appeal from N.D. Tex.
  • per curiam (Davis, Duncan, Engelhardt), Federal Tort Claims Act
  • Affirming dismissal of FTCA claim against Bureau of Prisons Officer as time-barred.

• U.S. v. Martinez, 22-20074, appeal from S.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Romero, 22-40014, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Mattlage-Thurmond v. First National Bank of McGregor, 22-50021, appeal from W.D. Tex.
  • per curiam (Stewart, Elrod, Graves), bankruptcy
  • Affirming bankruptcy court’s overruling of objection filed by debtors over a year after bank submitted amended proof of claim.

• Mattlage-Thurmond v. First National Bank of McGregor, 22-50032, appeal from W.D. Tex.
  • per curiam (Stewart, Elrod, Graves), bankruptcy
  • Affirming bankruptcy court’s determination that a binding order that the parties agreed to bars subsequent claims under res judicata.