November 30, 2022, opinions

Designated for publication

  • Carswell v. Camp, 21-10171, appeal from N.D. Tex.
    • Oldham, J. (Barksdale, Engelhardt, Oldham), qualified immunity
    • Denying petition for rehearing, and substituting June 17 decision with new decision, but still vacating district court’s boilerplate scheduling order that required discovery to move forward without first determining the issue of qualified immunity.
    • The Court held that a scheduling order was appealable under the collateral order doctrine because one of the purposes of qualified immunity is to spare defendants subject to the immunity the burden of pretrial discovery.
    • The Court then held that the district court abused its discretion in enforcing the scheduling order prior to ruling on the defendants’ qualified immunity motion. The Court held that “Three points about this ‘careful procedure’ [from its earlier precedent regarding qualified immunity discovery] bear emphasis. First, its purpose is only to allow the district court to rule on the defendant’s assertion of QI; its purpose is not to provide a backdoor for plaintiffs to circumvent the defendant’s immunity from suit. Second, where the QI-asserting official determines that any pre-ruling discovery sought or ordered in the district court crosses the line from permissible Lion Boulous discovery to impermissible vitiation of the official’s immunity from suit, the collateral order doctrine authorizes an immediate appeal like the one we entertain today. And third, Lion Boulos and its progeny must be understood in light of subsequent Supreme Court precedent. The Supreme Court has now made clear that a plaintiff asserting constitutional claims against an officer claiming QI must survive the motion to dismiss without any discovery.”


  • U.S. v. Sims, 20-30294, appeal from E.D. La.
    • per curiam (Haynes, Willett, Ho), criminal, First Step Act
    • Vacating denial of motion for sentence reduction under the First Step Act, and remanding for consideration in light of Concepcion v. U.S., 142 S. Ct. 2389 (2022).
  • Berk v. Executive Office of U.S. Attorneys, 21-10693, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), Freedom of Information Act
    • Affirming summary judgment in favor of government defendants on plaintiff’s FOIA claim, holding that defendants conducted a reasonable search and did not improperly withhold information.
  • McWilliams v. City of Houston, 21-20369, appeal from S.D. Tex.
    • per curiam (Richman, Elrod, Oldham), § 1983
    • Affirming dismissal of plaintiffs’ claims arising from death of inmate, holding that there was no waiver of governmental immunity under the Texas Tort Claims Act; that for qualified immunity purposes the allegations do not give rise to any finding of deliberate indifference to the decedent’s cocaine overdose; that the defendants’ actions were not a violation of clearly established law; and that the plaintiffs failed to allege sufficient facts on which to ground a claim of municipal liability.
  • U.S. v. Marquez, 21-51116, appeal from W.D. Tex.
    • per curiam (Stewart, Willett, Oldham), criminal
    • Affirming denial of defendant’s Rule 41(g) motion for return of seized items.