Take the Fifth

Designated for publication

• Jackson Municipal Airport Authority v. Harkins, 21-60312, appeal from S.D. Miss.
  • Elrod, J. (Dennis, Elrod, Duncan), Dennis, J., dissenting in part; Duncan, J., dissenting in part; legislative privilege, appellate jurisdiction, standing
  • Affirming district court’s order that Mississippi legislators must provide a privilege log for documents they contend are subject to the legislative privilege, but reversing district court’s order that the legislative privilege is automatically waived for any documents shared with third parties, and remanding for further proceedings.
  • In suit challenging state law removing control of the Jacks-Medgar Wiley Evers Airport from the control of a locally-selected municipal airport authority to a “regional” airport authority with only two of nine members selected by the Jackson City Council, on Equal Protection grounds alleging that the reason for the new law was racially discriminatory, eight non-party state legislators refused to comply with a document subpoena on the basis of legislative privilege. The district court ordered the legislators to provide a privilege log and held that that any legislative privilege was waived as to all documents shared with third parties.
  • The Court held that the legislators had a right to immediately appeal the district court’s discovery order, under Circuit precedent (in line with Eleventh Circuit jurisprudence) that one who asserts a government privilege unsuccessfully has a right of immediate appeal. “[T]he order here is not merely a preliminary step because it specifically ordered the Legislators to produce any documents that had been shared with third parties.”
  • The Court then held that the municipal authority’s Commissioners have standing to bring the suit. “The alleged injury is concrete because the Commissioners will be deprived of their benefits if they lose their position. As Commissioners, they are entitled to receive a per diem for their service and a travel reimbursement that allows them to obtain specialized training in airport administration. In addition to these tangible benefits, their positions also confer substantial status and authority because as commissioners, they exercise considerable power over the airport by overseeing finances and operations and defining the airport’s strategic goals. We hold that the potential loss of benefits that comes with the Commissioners’ position is sufficiently concrete to support the Commissioners’ standing.” The Court also held that this injury was sufficiently particular, because the elimination of the municipal authority would eliminate the Commissioners’ particular positions; that the injury was imminent; and that it was fairly traceable to the state law being challenged.
  • The Court rejected the legislators’ arguments that they need not provide a privilege log because the documents would not be relevant evidence of their motive in passing the state law. The Court held that the log was necessary for all documents as to which the privilege was invoked “to determine which of the requested documents and communications are protected by legislative privilege.”
  • The Court nevertheless held that the broad bounds of the legislative privilege allowed the privilege to extend to some documents shared with third parties: “As relevant here, communications with third parties outside the legislature might still be within the sphere of legitimate legislative activity if the communication bears on potential legislation. Consequently, some communications with third parties, such as private communications with advocacy groups, are protected by legislative privilege when they are a part and parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider.” (Internal quotation marks and citations omitted).
  • Judge Dennis dissented in part. He would have found that there was no right to appeal, and no appellate jurisdiction, because as a practical matter the district court’s order would only result in production of a privilege log, with disputes based on that log about what documents should or should not be produced. “The Legislators’ challenge to the first step of this process, before any assertion of privilege over specific discovery has been sustained, disputed, or adjudicated, is a challenge to an undetermined and inconclusive discovery dispute. It is unripe for appellate review.”
  • Judge Duncan also dissented in part. While he agreed with Judge Elrod’s opinion that the Court had appellate jurisdiction, he disagreed that the Commissioners have standing. He disagreed that the Commissioners’ per diems created a right that could be injured for standing purposes. “Per diems are perks tethered to public office, not private rights whose loss personally injures the officeholder. So, instead of remanding for further proceedings in this now-seven-year-old intrastate political squabble, I would reverse and render judgment dismissing the Commissioners’ claims.”

• U.S. v. Ramirez, 22-50042, appeal from W.D. Tex.
  • Elrod, J. (Dennis, Elrod, Ho), Ho, J., dissenting; criminal, search and seizure
  • Vacating defendant’s conviction and 46-month sentence for being a felon in possession of a firearm, holding that district court erred in denying motion to suppress gun that was recovered from defendant’s jacket, and remanding for further proceedings.
  • Defendant had been detained for running a stop sign after exiting his mother’s pickup truck at his mother’s house and after he had tossed a jacket over the fence into his mother’s backyard. After interviewing the defendant and a companion, patting the defendant down, and searching the truck, an officer reached over the fence and retrieved the jacket, searched the jacket, and found a gun in the jacket pocket. The district court denied the motion to suppress the gun as the fruit of a warrantless search, holding that the defendant had abandoned the jacket and thereby forfeited any protectable expectation of privacy.
  • The Court held, “[W]e do not think it can fairly be said that Ramirez manifested an intent to disclaim ownership in his jacket simply by placing it on the private side of his mother’s fenced-in property line. This would be a different case if Ramirez had dropped his jacket on the public sidewalk and ran away, or if he had insisted before the search that the jacket did not belong to him. It would also be a different case if the evidence demonstrated that Ramirez was not permitted to leave his possessions on his mother’s property. But the Government has not offered any evidence to that effect. To the contrary, the evidence offered at the suppression hearing overwhelmingly showed that Ramirez was welcome on the property.”
  • Judge Ho dissented. Because the defendant had placed his jacket on top of his mother’s trash can, albeit on the private side of the fence, he would hold that the jacket had been abandoned and the Fourth Amendment forfeited. “If you discard an item in a location that is easily accessible to the public—for example, on top of a garbage can right next to a public sidewalk— it’s only natural for others to presume that you’ve abandoned that item. That’s just common sense.”

Unpublished

• U.S. v. Perez, 22-10706, appeal from N.D. Tex.
  • per curiam (King, Higginson, Willett), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Tovar-Campos, 22-10996, appeal from N.D. Tex.
  • per curiam (King, Higginson, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hernandez-Guerrero, 22-20469, appeal from S.D. Tex.
  • per curiam (Stewart, Dennis, Willett), criminal, sentencing
  • Vacating sentence on conviction of illegal reentry, and remanding for amendment of written judgment to conform to oral pronouncement.

• Carlisle v. McNair, 22-30031, appeal from E.D. La.
  • per curiam (Higginbotham, Southwick, Willett), § 1983
  • Affirming dismissal of § 1983 claims brought by participants in court-mandated drug court program against local sheriff and private program contractor.

• Rodi Marine, L.L.C. v. Island Operating Co., 22-30043, appeal from W.D. La.
  • per curiam (Richman, Duncan, Oldham), insurance
  • Affirming judgment that third-party plaintiff was not an additional insured under policy for purposes of indemnification from personal injury claim.

• U.S. v. Carreto, 22-40710, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Douglas), criminal, new trial
  • Affirming denial of motion for new trial on basis of newly discovered evidence, from conviction of conspiracy to possess with intent to distribute a mixture containing a detectable amount of heroin resulting in serious bodily injury and conspiracy to possess with intent to distribute a mixture containing a detectable amount of methamphetamine.

• PNC Bank, National Association v. Ruiz, 22-50584, appeal from W.D. Tex.
  • per curiam (Higginbotham, Southwick, Willett), foreclosure
  • Affirming summary judgment in favor of lender in suit arising from foreclosure.

• Reyes v. Garland, 22-60015, petition for review of BIA order
  • per curiam (King, Higginson, Willett), immigration
  • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order affirming denial of application for cancellation of removal and withholding of removal.

• Basurto-Lozano v. Garland, 22-60344, petition for review of BIA order
  • per curiam (Barksdale, Elrod, Haynes), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.