August 19, 2022, opinions

Designated for publication

  • NexPoint Advisors, L.P. v. Highland Capital Management, L.P., 21-10449, appeal from N.D. Tex.
    • Duncan, J. (Wiener, Graves, Duncan), bankruptcy
    • Affirming in large part confirmation order in investment firm’s bankruptcy; but reversing that portion of the liquidation plan that exculpated certain non-debtors in violation of 11 U.S.C. § 524(e).
    • The Court first held that the appeal was not equitably moot on the basis of substantial consummation of the reorganization plan. The Court noted that the Fifth Circuit does not apply equitable mootness on a whole-appeal basis, but claim by claim. The Court also rejected the proposed bright-line bar to equitable mootness that equitable mootness should only apply to reorganization plans rather than liquidation plans. On a claim-by-claim basis, the Court held that equitable mootness did not support dismissal of the challenge to the plan’s protection provisions or the challenge to the application of the absolute-priority rule.
    • The Court held that the plan contemplated Highland Capital continuing in engaging in business after consummation, such that it was eligible for automatic discharge of debts.
    • The Court held that the absolute-priority rule applies, but that the plan satisfies it.
    • The Court rejected the argument that the failure of the Independent Directors to file periodic financial reports under Bankruptcy Rule of Procedure 2015.3(a) did not support reversal of the confirmation of the plan.
    • The plan also featured “protection” provisions, which exculpated certain non-debtor entities supporting the plan from post-petition certain lawsuits, enjoined certain parties from taking actions to interfere with consummation of the plan, and placed the bankruptcy court in a gatekeeper role to approve any claims as colorable before lawsuits containing those claims could be filed. The Court held that the injunction and gatekeeper provisions were valid, but that the exculpation of non-debtor parties was not.
  • Luke v. State of Texas, 21-50791, appeal from W.D. Tex.
    • Costa, J. (Richman, Costa, Ho), Americans with Disabilities Act
    • Reversing dismissal on the pleadings of plaintiff’s ADA claims against County; and vacating dismissal of claims against state supervision departments where plaintiff’s ADA claims arose from the failure of various entities to provide a sign language interpreter to him during his arrest for marijuana possession, during any of the court proceedings, and during any of his interactions with probation officers. But affirming dismissal of claims against the State for failure to properly sue the State.
  • Rogers v. Hall, 21-60533, appeal from N.D. Miss.
    • Wilson, J. (Smith, Costa, Wilson), Costa, J., dissenting; First Amendment, sovereign immunity, qualified immunity
    • Affirming summary judgment dismissal of First Amendment retaliation claims by former chief investigator for Mississippi State Penitentiary arising from his termination after testifying at a probable cause hearing on behalf of one of his investigators.
    • The Court held that the plaintiff did not articulate the violation of a clearly established right. The Court held that prior precedent had left open the question of whether the First Amendment protected sworn testimony given by a public employee within his ordinary job duties, and that no precedent clearly established that the plaintiff’s testimony was outside his normal job duties.
    • Judge Costa dissented. “Do police officers have the same First Amendment rights that other public employees enjoy? That is the decisive question in this appeal. Because those serving in law enforcement do not lose their freedom of speech when they testify as citizens, I would reverse.”


  • Raggio – 2204 Jesse Owens, L.L.C. v. Hattaway, 20-50693, appeal from W.D. Tex.
    • per curiam (Richman, Clement, Higginson), Rooker-Feldman doctrine
    • Affirming in part and reversing in part dismissal of claims arising from state-court-ordered property seizure and forced sale, based on Rooker-Feldman doctrine.
  • U.S. v. Zubia, 21-50811, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 21-month sentence on revocation of supervised release.
  • Fuentes-Guevara v. Garland, 21-60077, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order affirming the immigration judge’s denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.