Take the Fifth

Designated for publication

• Roe v. Cypress-Fairbanks Independent School District, 20-20657, appeal from S.D. Tex.
  • Elrod, J. (Dennis, Elrod, Duncan), Title IX
  • Affirming summary judgment dismissal of deliberate indifference claims against school district as to risk of 14-year-old plaintiff’s violent sexual assault in high school stairwell (requiring multiple surgeries to remedy), but reversing summary judgment dismissal of claims of deliberate indifference to totality of harassment, which included a post-assault abusive relationship, subsequent harassment and pervasive bullying on school property, and resulting recommendation to plaintiff that she drop out of school.
  • The Court held that the plaintiff failed to present summary judgment facts of the school district’s actual knowledge of the risk of sexual assault. The Court held that, under its precedent, even if the district failed to adequately implement its Title IX policies, she failed to “connect this failure to the District’s knowledge about her in particular.” The Court also held that evidence of knowledge of other sexual assault or harassment in the school stairwells would not suffice. “We have not defined precisely whether and to what extent the harassment of persons other than the plaintiff may constitute actual knowledge of the plaintiff’s specific risk of Title IX harm. Nonetheless, assorted incidents of sexual misconduct involving neither the Title IX victim nor the aggressor are generally insufficient to give a school district actual knowledge of the plaintiff’s assault. At most, these arguments show only constructive notice by another name.” (Internal quotation marks and citations omitted).
  • However, the Court held that there was summary judgment evidence sufficient to sustain the plaintiff’s deliberate indifference claim regarding the totality of harassment. “The totality of the circumstances, including the District’s lack of investigation, awareness of the pre-assault abusive relationship, failure to prevent in-person and cyber-attacks from Doe and other students post-assault, and failure to provide any academic or other appropriate support to Roe, culminated in exactly what Title IX is designed to prevent—the tragedy of Roe dropping out of school. A reasonable jury could find that the District violated Title IX based on these facts.”

• U.S. v. Lott, 21-11163, appeal from N.D. Tex.
  • Higginbotham, J. (Higginbotham, Southwick, Higginson), criminal, sentencing
  • Affirming 120-month sentence and conviction of kidnapping and racketeering.
  • Holding that defendant failed “to show that the district court lacked evidence to conclude that he committed a crime of violence with intent to further a drug trafficking enterprise,” and that the defendant also failed to show that the district court erred in failing to apply a mitigating role adjustment to his sentencing factors.

• U.S. v. Cantu-Cox, 21-30416, c/w 21-30419, appeal from E.D. La.
  • Clement, J. (Clement, Duncan, Wilson), criminal, sentencing
  • Affirming co-defendants’ 240-month sentences on a guilty-plea agreement to conspiracy to possess and distribute methamphetamine, based on reliance on previous kidnapping incident as part of the sentencing calculation.
  • The co-defendants relied on the part of their plea deal where the government was not to add any additional charges as long as they had shared truthfully about their involvement in previous crimes. The Court held that the district court did not err in considering the kidnapping incident as part of the sentencing because it was a “crime of violence,” which was excepted from protection under the terms of the plea agreement.

• Dominick v. U.S. Department of Homeland Security, 22-30002, appeal from E.D. La.
  • Higginbotham, J. (Higginbotham, Southwick, Higginson), Title VII, employment discrimination
  • Affirming summary judgment dismissal of employment discrimination claims against FEMA, and finding that district court did not abuse its discretion in declining to grant a continuance for further discovery under Fed. R. Civ. P. 56(d).
  • The Court held that the district court did not abuse its discretion in denying the plaintiff’s Rule 56(d) motion, where the district court had already granted 60 days for discovery and the plaintiff had waited until the 56th day (and just prior to a holiday weekend) to contact defense counsel to organize depositions and failed to show that she had acted diligently in seeking the requested discovery. The Court also held that the evidence produced during discovery during a prior administrative process was not immaterial to the summary judgment issue.

• In re Paxton, 22-50882, appeal from W.D. Tex.
  • Duncan, J. (Higginbotham, Duncan, Wilson), Higginbotham, J., concurring; mandamus, subpoena, abortion law, sovereign immunity, standing
  • Granting writ of mandamus to protect Texas attorney general from subpoena to testify at a deposition or evidentiary hearing on plaintiffs’ suit for injunctive relief against AG’s enforcement of Texas abortion laws to penalize plaintiffs’ out-of-state actions.
  • Plaintiffs, organizations that fund abortions and an abortion provider, brought suit against the AG and other officials to enjoin enforcement of Texas’s abortion laws as a violation of their First Amendment rights and their right to interstate travel. The AG moved to dismiss the suit for lack of subject matter jurisdiction, arguing he was protected by sovereign immunity and that the plaintiffs lacked standing. Before the motion to dismiss was ruled on, plaintiffs sought to subpoena for the AG’s testimony, which the district court issued on a motion for reconsideration of his initial grant of a motion to quash.
  • The Court held that the district court’s duty to determine its own jurisdiction is non-discretionary, and that the district court therefore should have ruled on the motion to dismiss on jurisdictional grounds prior to ruling on the motion to quash. “A court has a fundamental duty to examine its jurisdiction. The district court’s failure to do so here extends beyond a mere jurisdictional error or mere failure to spot a jurisdictional issue. Indeed, the district court’s order explicitly postpones Paxton’s assertion of sovereign immunity pending his deposition. But sovereign immunity provides immunity from suit, not mere immunity from damages.” (Internal quotation marks and citations omitted).
  • The Court also held that the “district court also clearly abused its discretion by refusing to quash the subpoenas.” The Court held that there was no exceptional circumstance presented requiring the AG’s testimony about the State’s enforcement policies because the AG himself had made public comments on the issue. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”
  • Judge Higginbotham concurred. He would not have gone as far as holding that there can never be discovery before the determination of a claim of sovereign immunity, but to simply apply the apex doctrine to determine the case. “My colleagues go further, applying Carswell v. Camp’s complete ban on discovery prior to the determination of qualified immunity to the determination of sovereign immunity. That any obligation of Attorney General Paxton to testify is fully resolved by the Apex doctrine aside, the mandate has not yet issued in Carswell, but even if it is proffered as a decision of this panel, now informed but not controlled by precedent, I cannot agree. It is at best unsettled jurisprudence. The Apex doctrine does all the work here and it is not apparent that discovery from the Attorney General is essential to this case.”

Unpublished

• U.S. v. Ahmed, 20-40713, appeal from E.D. Tex.
  • per curiam (King, Higginson, Willett), criminal, sentencing
  • Affirming 300-month sentence and convictions for attempting to provide material support to foreign terrorist organizations and making false statements involving international terrorism to federal officers.

• Portillo-Aceituno v. Garland, 20-61193, petition for review of BIA order
  • per curiam (King, Higginson, Willett), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of motion to reopen proceedings.

• Padilla v. Quintero, 21-40055, appeal from S.D. Tex.
  • per curiam (Davis, Smith, Dennis), prisoner suit
  • Reversing district court’s denial of Rule 59(e) motion from dismissal of prisoner’s § 1983 suit, on basis that notice of appeal had deprived it of jurisdiction, and remanding for consideration of Rule 59(e) motion.

• Esparza v. Garland, 21-60959, petition for review of BIA order
  • per curiam (King, Higginson, Willett), immigration
  • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of application for cancellation of removal.

• U.S. v. Valdez, 22-10364, appeal from N.D. Tex.
  • Higginson, J. (King, Higginson, Willett), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Flores, 22-10446, appeal from N.D. Tex.
  • per curiam (Davis, Smith, Dennis), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Leonard v. LeBlanc, 22-30265, appeal from W.D. La.
  • per curiam (Jones, Haynes, Oldham), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Louisiana state prisoner’s § 1983 claim.

• U.S. v. Lira, 22-50051, appeal from W.D. Tex.
  • per curiam (Smith, Dennis, Southwick), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Agustin-Basilio, 22-50168, appeal from W.D. Tex.
  • per curiam (Smith, Dennis, Southwick), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.