August 24, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Harness v. Watson, 19-60632, appeal from S.D. Miss.
    • [ed.: Note that the following en banc decision was announced by the Court as “per curiam,” i.e., “for the court,” and at the beginning of that decision then listed all 17 active-status judges, intimating at the outset that the decision was for the entire court. Of course, as the reader proceeds through the several opinions, Judge Ho writes to concur only in part in that “for the court” opinion, Judge Elrod dissents from that “for the court” opinion, Judge Haynes dissents from that “for the court” opinion, and Judge Graves, joined by Judges Stewart, Dennis, Higginson, and Costa, dissents from that “for the court” opinion in an in-depth and eloquent dissenting opinion. So, how is that majority opinion, actually a 9-1-7 decision, “for the court”? Why is no authorship attributed for the majority opinion? Who among the actual majority authored an opinion upholding the 1890 Mississippi felon-disenfranchisement provision? Note in the below, I have removed the concurring and dissenting judges from the Court’s listing of judges in its “per curiam” designation.]
    • per curiam (Richman, Jones, Smith, Southwick, Willett, Duncan, Engelhardt, Oldham, Wilson); Ho, J., concurring in part and concurring in judgment; Elrod, J., dissenting; Haynes, J., dissenting; Graves, J., dissenting (joined by Stewart, Dennis, Higginson, Costa, JJ.); election law, Fourteenth Amendment, Fifteenth Amendment, Equal Protection
    • Affirming summary judgment dismissal of Black plaintiffs’ claims that Mississippi’s state constitutional provision disenfranchising felons violated the Fourteenth and Fifteenth Amendments.
    • Essentially agreeing with the panel opinion, the en banc Court held that the amendment of the original 1890 constitutional provision in 1950 and 1968 “cleansed” the racially discriminatory animus from the state constitutional provision, such that it no longer presented a violation of the federal Constitution. “After careful consideration of the record and applicable precedents, we reconfirm that Section 241 in its current form does not violate the Equal Protection Clause. Plaintiffs failed to meet their burden of showing that the current version of Section 241 was motivated by discriminatory intent. In addition, Mississippi has conclusively shown that any taint associated with Section 241 has been cured.”
    • The Court reviewed the Hunter two-step process for determining whether an Equal Protection violation results from a facially neutral provision: “The first stage (‘Hunter step one’) places the burden on plaintiffs to prove by an evidentiary preponderance that racial discrimination was a substantial or motivating factor in enacting the challenged provision. If the plaintiffs were to succeed on that point, at the second stage (‘Hunter step two’), the burden shifts to the state to demonstrate that the provision would have been enacted without an impermissible purpose.” The Court acknowledged that, in Hunter, the Supreme Court had found a similar Alabama provision to constitute an Equal Protection violation by examining the racial animus motivating the original passage of the provision; but also recognized that Hunter left open the question whether subsequent reenactments could cure that violation. A prior Fifth Circuit opinion, Cotton, had held that the deliberative process involved in the 1950 and 1968 amendments of Mississippi’s constitutional provision had worked such a cure.
    • The Court rejected the plaintiffs’ contention that, under Hunter, regardless of subsequent amendments, the original racist intent rendered the provision an irredeemable Equal Protection violation. “On its face, this ‘sins of the father’ contention fails. This case is not analogous to Hunter because the provision has been, not only reenacted, but reenacted twice according to Mississippi state procedures. The qualification in Hunter as to subsequent enactments has been understood in multiple decisions in addition to Cotton to mean that the decisive legal question is the intent of the legislature that enacted the most recent version of an originally tainted law.” The Court found this approach to have been “fortified, if not fully ratified,” by Abbott v. Perez, 138 S. Ct. 2305 (2018).
    • The Court rejected the plaintiffs’ argument that the amendment in 1950 to remove burglary from the list of disenfranchising crimes, and in 1968 to add rape and murder to the list, would not affect the original tainting of the inclusion of the other crimes that remained from the original list from the 1890 constitutional provision. The Court held there was “no support in applicable law” for this piecemeal approach to the Cotton cure. The Court also rejected the argument that public hostility to civil rights in 1950 and 1968 rendered implausible that the the 1950 and 1968 amendments could remove the discriminatory taint, holding that this argument “perverts the burden of proof.”
    • Judge Ho concurred in part and concurred in the judgment. “I write separately to offer a separate and distinct reason why the court is right to uphold Mississippi law—namely, the absence of any discriminatory effect as well as intent. After all, Mississippi law does not disproportionately disenfranchise African-American voters at a higher rate than would a blanket felon disenfranchisement law.”
    • Judge Elrod dissented, on the basis that the 1950 and 1968 amendments to the Mississippi constitution were not reenactments of the original and still-remaining 1890 list of disenfranchising crimes. “If Mississippi had subsequently reenacted § 241 in the absence of discriminatory intent, § 241 would pose no equal protection problem. But as Judge Graves’s dissenting opinion points out, the Mississippi electorate has never been asked to either remove or approve of eight of the nine original crimes. When burglary was removed in 1950, and when rape and murder were added in 1968, Mississippians were given only an ‘up or down’ option to approve § 241 as amended—not to approve § 241 as it then existed. Post at 45–48 (Graves, J., dissenting). Because Mississippians were never given the option to remove the racially tainted list, as I understand Hunter v. Underwood—which binds us—I am not satisfied that the relevant parts of § 241 have been ‘reenacted.’ See 471 U.S. 222, 233 (1985). Having failed to reenact it, the State is stuck with its discriminatory intent.” Judge Elrod also noted that the state’s constitutional provision may still survive Equal Protection analysis if no discriminatory effect is shown, but that that issue was not resolved by the district court.
    • Judge Haynes dissented, agreeing with Judge Graves’ principal dissent. “In my view, the bottom line as to the relevant issues is that § 241 was enacted with discriminatory intent (which no one disputes), that it continues to have discriminatory impact, and that the provision was not ‘reenacted’ via amendment in 1950 or 1968. At no point did the Mississippi electorate have the option of striking the entirety of § 241’s disenfranchisement provision.”
    • Judge Graves dissented, expressly joined by Stewart, Dennis, Higginson, and Costa, JJ., but also agreed with by the dissenting opinions of Judges Elrod and Haynes. Judge Graves began by quoting from an 1890 statement by former Mississippi politician and governor, James K. Vardaman, that “There is no use to equivocate or lie about the matter … Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics…. In Mississippi we have in our constitution legislated against the racial peculiarities of the Negro…. When that device fails, we will resort to something else.” Judge Graves then introduced his dissent by opining, “This is the intent behind the law the en banc court upholds today. In 1890, Mississippi held a constitutional convention with the express aim of enshrining white supremacy. The 1890 Convention was a backlash against Reconstruction-era efforts to remedy centuries of chattel slavery and violence against Black people. The Convention was successful. The new constitution erased racial progress in Mississippi primarily through disenfranchising Black voters, formally beginning the Jim Crow era of the American South. Today the en banc majority upholds a provision enacted in 1890 that was expressly aimed at preventing Black Mississippians from voting. And it does so by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, ‘cleansed’ that provision in 1968. Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.” He then provides an in-depth analysis of the historical underpinnings of not just the 1890 state constitution, but of the political circumstances surrounding the 1950 and 1968 amendments, before addressing the majority’s arguments in light of this analysis.
    • Judge Graves then recounted his own personal experience growing up under Jim Crow. “Recounting Mississippi’s history forces me to relive my experiences growing up in the Jim Crow era. While I do not rely on those experiences in deciding this case, I would be less than candid if I did not admit that I recall them. Vividly. So, I confess that I remember in 1963 a cross was burned on my grandmother’s lawn, two doors down from where I grew up. In December of 1969, I left my all-Black high school for Christmas break. It was after the Alexander decision where the Supreme Court declared Mississippi could no longer delay desegregation. As a result, I returned to my ‘desegregated’ high school in January of 1970. I was disheartened. Many of the best Black teachers at my high school had been transferred to a predominantly white school and many of the worst white teachers had been transferred to my school. Not a single white student enrolled at my school. In 1991, I was appointed to serve as a state trial judge. Undoubtedly, my appointment was evidence of progress in the struggle for racial equality in Mississippi. But in the courtroom where I sat, the bench was flanked on one side by the United States flag and on the other side by the Mississippi flag and its Confederate emblem. My inclination was to ceremoniously remove it from the courtroom. But there were others who were working to change the flag. They assured me that change was imminent. They were wrong. Ten years later I was appointed to serve on the Mississippi Supreme Court. There, the 1894 flag flew above the court, flanked the bench, and nestled in my chambers. And ten years later, when I began my service on this court, there again was the ever-present reminder of Mississippi’s sordid history. It is a testament to the greatness of this country and state that I have been selected to serve in the judicial branch of government. But no matter where I went, the 1894 flag was already there—a haunting reminder that a wrong never righted touches us all. I recount these events, as a native Mississippian, only to highlight the importance of making the right decision in this case.”
  • Lee v. Anthony Lawrence Collection, L.L.C., 20-30796, appeal from E.D. La.
    • Elrod, J. (Jolly, Elrod, Oldham); trademark
    • Affirming dismissal of trademark infringement suit against University licensing agent and licensees by individuals who petitioned to trademark “thee I love,” a phrase from the alma mater of Jackson State University, where those individuals did not include the University as a defendant.
    • The Court held that the University is a required party under Rule 19.
    • The Court then held that the claims should be dismissed, because the University, as an arm of the State of Mississippi, could not be joined because it enjoyed sovereign immunity.
  • U.S. v. Green, 21-10651, c/w U.S. v. Selgas, 21-10672; appeals from N.D. Tex.
    • Dennis, J. (Higginbotham, Dennis, Graves), criminal, sufficiency of evidence
    • Affirming convictions for conspiracy to defraud the IRS and for tax evasion.
    • Defendants had attempted to reduce their taxes owed by claiming that Federal Reserve notes are “valueless pieces of paper” and that “lawful money” should instead be measured by the “constitutional value” of a dollar, tied to a particular weight of grains of silver. They then engaged in numerous similarly discredited schemes to conceal their assets and the value of their income.
    • The Court held that the district court did not err in denying defendants’ motion for continuance when they changed trial counsel on the eve of trial.
    • The Court held that the defendants’ constructive-amendment challenge, that the district court’s jury instructions constructively amended his indictment, failed to meet the requirements under plain-error review.
    • The Court held that there was sufficient evidence in the record to support the conspiracy -to-defraud and tax-evasion convictions.
    • The Court held that the defendants’ briefing failed to address all four elements of plain-error review in their challenge to certain jury instructions.
  • U.S. v. Vargas, 21-20140, appeal from S.D. Tex.
    • per curiam (Richman, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); criminal, sentencing
    • Vacating May 31, 2022, panel opinion affirming sentence based on imposition of career offender enhancement, and ordering en banc rehearing.
  • U.S. v. Tucker, 21-30194, appeal from M.D. La.
    • Willett, J. (Willett, Engelhardt, Wilson, JJ.); criminal, sufficiency of evidence
    • Withdrawing prior opinion (33 F.4th 739) and substituting new opinion reversing convictions for making false statements to a federally licensed firearms dealer and vacating sentence, finding the convictions were not supported by sufficient evidence.
  • Harris v. Clay County, 21-60456, appeal from N.D. Miss.
    • Costa, J. (Smith, Costa, Wilson, JJ.), qualified immunity, appellate jurisdiction
    • Granting petition for panel rehearing, denying petition for en banc rehearing, withdrawing prior panel opinion (40 F.4th 266) and substituting new opinion dismissing appeal of denial of summary judgment motion to dismiss claims against County on Monell claims, for lack of appellate jurisdiction; affirming denial of summary judgment qualified immunity dismissal to sheriff and deputy on basis that they violated clearly established Constitutional rights when they continued to detain the plaintiff in jail for more than six years after he was adjudged to be incompetent to stand trial and his civil commitment proceeding was dismissed.

Unpublished

  • U.S. v. Seekins, 21-10556, appeal from N.D. Tex.
    • per curiam (Stewart, Elrod, Graves), criminal, sentencing
    • Affirming conviction of being a felon in possession of a firearm, and 70-month sentence.
  • Ramirez v. City of Arlington, 21-10856, appeal from N.D. Tex.
    • Jolly, J. (Jolly, Elrod, Haynes), Haynes, J., dissenting; municipal liability
    • Vacating district court’s sua sponte dismissal of plaintiff’s Monell claim for municipal liability, and remanding for further proceedings.
    • Judge Haynes dissented, noting that the dismissal of the City was not sua sponte and that the plaintiff had the opportunity to be heard.
  • U.S. v. Ochoa, 21-11277, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, guilty plea
    • Affirming conviction of money laundering, finding no plain error in the sufficiency of the factual basis to support guilty plea.
  • EEOC v. Cash Depot, Ltd., 21-20515, appeal from S.D. Tex.
    • per curiam (Higginbotham, Dennis, Graves), Americans with Disabilities Act
    • Reversing and remanding from summary judgment dismissal of EEOC’s ADA claims against defendant.
  • U.S. v. Gilbert, 21-51057, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Yorkman, 21-51219, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Eyong v. Garland, 21-60331, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying Cameroonian citizen’s petition for review of BIA order dismissing his appeal from a decision of the Immigration Judge (IJ) concluding that he was not entitled to asylum, withholding of removal, and protection under the CAT.
  • Wu v. Garland, 21-60420, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying in part and dismissing in part Chinese citizen’s petition for review of BIA order dismissing his appeal from a decision of the Immigration Judge (IJ) concluding that he was ineligible for asylum, withholding of removal, and protection under the CAT.
  • Campos v. Garland, 21-60464, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order denying his motion to reopen.
  • Goree v. City of Verona, 21-60911, appeal from N.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), sexual harassment, employment discrimination, Title VII
    • Affirming summary judgment partially dismissing employee’s Title VII claims, and evidentiary ruling in trial of remaining claims.
  • U.S. v. Vences-Enciso, 22-10184, appeal from N.D. Tex.
    • per curiam (Davis, Smith, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Williams v. Biomedical Research Foundation of Northwest Louisiana, 22-30064, appeal from W.D. La.
    • per curiam (Jolly, Willett, Engelhardt), sanctions
    • Vacating imposition of sanctions on attorney arising from email sent to law clerk regarding the delay in ruling on a pending motion for partial summary judgment, on basis that district court failed to accord due process to the sanctioned attorney, and remanding for further proceedings.
  • U.S. v. Rodriguez-Juarez, 22-50004, c/w 22-50011, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Granting summary affirmance of conviction and sentence for illegal reentry and for revocation of supervised release.