February 17, 2023, opinions

Designated for publication

  • U.S. v. Hamilton, 21-11157, appeal from N.D. Tex.
    • per curiam; Elrod, J., concurring in denial of en banc rehearing (joined by Willett, Duncan, Wilson); Ho, J., dissenting from denial of rehearing en banc; criminal, First Amendment
    • Denying en banc rehearing from August 23, 2022, panel opinion that vacated convictions for bribery concerning a local government receiving federal benefits and conspiracy to do the same, on holding that federal-programs bribery under 18 U.S.C. § 666 requires a quid pro quo and that district court erred in failing to instruct the jury on the quid pro quo requirement. Nine judges voted to deny en banc rehearing (Stewart, Elrod, Southwick, Haynes, Willett, Duncan, Engelhardt, Wilson, Douglas), while seven voted for rehearing (Richman, Jones, Smith, Graves, Higginson, Ho, Oldham).
    • Judge Elrod concurred in denial of rehearing, noting that “[t]his case was about statutory interpretation and jury instructions—not the First Amendment”; and that the dissenting opinion erred factually in opining that the jury was instructed on the quid pro quo requirement and that the panel opinion had made a finding as to the existence of a quid pro quo.
    • Judge Ho dissented from the denial of rehearing, opining that the Fifth Circuit has “turned the First Amendment on its head” by holding in one case that a $350 campaign donation limit for city council races is constitutional because of a presumption of corruption but that the criminal statute at issue here requires a quid pro quo agreement and does not allow for a presumption of corruption.
  • Kling v. Hebert, 21-30658, appeal from M.D. La.
    • Dennis, J. (Stewart, Dennis, Higginson), timeliness, First Amendment, sovereign immunity
    • Affirming in part dismissal of First Amendment claims, as to application of sovereign immunity to defendants’ official capacity, and in part certifying a question to the Louisiana Supreme Court regarding whether prior state-court proceeding under state constitutional provision arising from same facts interrupted prescription as to plaintiff’s federal First Amendment claim.
    • Plaintiff had been terminated from position with the Alcohol and Tobacco Control board, an entity within the Louisiana Department of Revenue, and he brought suit against the Department of Revenue in state court arguing that he had been terminated in retaliation for written complaints he had submitted regarding workplace and ethics violations by then-Assistant Secretary of the ATC, Troy Hebert. While an appeal in that case was pending, he filed this federal lawsuit against the Commissioner of the ATC in her official capacity and Hebert in his individual capacity.
    • The Court held that the plaintiff’s official-capacity claim could not hurdle sovereign immunity through Ex parte Young because he did not have a viable claim for injunctive (reinstatement) relief.
    • The Court then certified to the state supreme court the question of whether his individual-capacity claim was untimely: “In Louisiana, under what circumstances, if any, does the commencement of a suit in a court of competent jurisdiction and venue interrupt prescription as to causes of action, understood as legal claims rather than the facts giving rise to them, not asserted in that suit?


  • Spell v. Edwards, 22-30075, appeal from M.D. La.
    • per curiam (Richman, Elrod, Oldham), Oldham, J., concurring (joined by Elrod, J.), sec. 1983, First Amendment
    • Affirming dismissal of plaintiff pastor’s First Amendment claims against Louisiana Governor and other officials arising from COVID-19 restrictions.
    • Judge Oldham concurred, noting that the plaintiff could have prevailed if he had argued that his church was treated differently than comparable secular assemblies, but that he inexplicably failed to make that claim and therefore “insisted on taking a loss.”
  • U.S. v. Mascarenas-Jaramillo, 22-40712, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez-Pargas, 22-50148, c/w 22-50159, appeal from W.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.