October 21, 2022, opinions

Designated for publication

  • Jarkesy v. Securities and Exchange Commission, 20-61007, petition for review of SEC order
    • per curiam (Richman, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson); Haynes, J., dissenting from denial of rehearing en banc (joined by Stewart, Dennis, Graves, Higginson, JJ.); securities law, separation of powers
    • On a 10-6 vote, denying en banc rehearing of May 18, 2022, panel opinion reversing SEC’s order affirming ALJ’s finding that petitioners had committed fraud under the Securities Act, Securities Exchange Act, and Advisers Act. In original panel opinion, Judge Elrod’s majority opinion had held that the Seventh Amendment right to a jury trial applies to SEC civil enforcement actions, that such actions could not properly be assigned to agency adjudication under the public-rights doctrine, that Congress unconstitutionally delegated legislative power to the SEC when it granted the agency discretion to choose whether to bring enforcement actions in Article III courts or within its agency adjudicative process, and that statutory removal restrictions for SEC ALJs violated the President’s power of removal under the Take Care Clause.
    • Judge Haynes dissented from the denial of rehearing, joined by Judges Stewart, Dennis, Graves, and Higginson, agreeing with Judge Davis’s dissent in the original panel opinion. She would hold that the public-rights exception to the Seventh Amendment jury right applies because Supreme Court and Fifth Circuit precedent support that the SEC enforcement action was enforcing a public right and not a wholly private right. She would also have held that the enforcement discretion of the SEC did not violate nondelegation doctrine because the enforcement action is not a legislative power. Finally, she would have held that the statutory removal restrictions did not violate the Take Care Clause because the ALJs’ powers are not executive, but adjudicatory, and because they are subject to removal by other authorities, even if insulated from removal by the President.


  • Stevenson v. Benjamin, 21-30253, appeal from M.D. La.
    • per curiam (Jones, Haynes, Oldham), prisoner suit
    • Affirming 12(b)(6) dismissal of Louisiana state prisoner’s § 1983 suit.
  • U.S. v. Benavides, 21-51211, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming conviction and sentence for attempted coercion and enticement of a minor.
  • U.S. v. Gomez-Ramirez, 22-40095, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Chafoya-Luna, 22-40157, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Valencia-Sandoval, 22-50358, c/w 22-50371, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • Allen v. Vereen, 22-60136, appeal from S.D. Miss.
    • per curiam (King, Jones, Smith), habeas corpus
    • Dismissing as frivolous appeal from denial of § 2241 petition.