July 6, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. Navy SEALs 1-26 v. Biden, 22-10077, c/w 22-10534, appeal from N.D. Tex.
    • Duncan, J. (Graves, Ho, Duncan), Graves, J., dissenting in part; Ho, J., dissenting; COVID-19, mootness
    • Dismissing appeal of injunction of Navy vaccine mandates, as moot, after Navy complied with Congressional directive, rescinded challenged policies requiring COVID-19 vaccinations even for servicemembers with religious objections, and formally announced that vaccines would not be imposed on any servicemember.
    • The Court held that “the Navy has given Plaintiffs the precise relief provided by the preliminary injunctions, leaving us unable to provide relief beyond what the Navy already gave.” (Internal quotation marks, citation, and alterations omitted).
    • The Court held that the voluntary cessation exception to mootness was inapplicable, as the course of events leading to the rescission of the policy did not raise suspicions of mere litigation posturing. The Court also held inapplicable the capable-of-repetition exception as the district court was not prevented from ruling on other claims before it (beyond the preliminary injunction on appeal) that remain justiciable.
    • The Court rejected the Navy’s argument that the panel decision denying a stay pending appeal should be vacated, as the Navy failed to argue or show “that the public interest would be served by vacatur.”
    • Judge Graves dissented in part. He would have vacated the prior order denying a stay, as “a rare case” where the published stay-denial opinion “has precedential effect beyond its preliminary decision on the stay.”
    • Judge Ho dissented in full, and would not have found the appeal to be moot, based on the voluntary cessation exception. He wrote, “It’s been said that ‘cowards never start, the weak never finish, winners never quit.’ These faithful SEALs have shown that they will not quit—and that they deserve to win.”

Unpublished

  • U.S. v. Montalvo, 22-10667, appeal from N.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), criminal, sentencing
    • Affirming 240-month sentence on conviction of receipt of child pornography.
  • U.S. v. Amador, 22-40139, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Vacating 240-month sentence on conviction of possession of a firearm by a felon, and remanding for resentencing within the statutory maximum for that count.
  • U.S. v. Welch, 22-40261, appeal from E.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cantu, 22-40512, appeal from S.D. Tex.
    • per curiam (Barksdale, Higginson, Ho), criminal, sentencing
    • Affirming conviction of accepting a bribe by a public official, but vacating 120-month sentence and remanding for resentencing within the correct Guidelines range.
  • Hinojos v. Garland, 22-60319, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for withholding of removal and protection under the Convention Against Torture.
  • Boyd v. Thomas, 22-60485, appeal from N.D. Miss.
    • per curiam (Dennis, Elrod, Willett), prisoner suit
    • Holding appeal of dismissal of Mississippi state prisoner’s § 1983 claim in abeyance, and remanding for limited purpose of allowing district court to rule on Rule 59(e) motion.
  • U.S. v. Oliver, 23-10007, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Johnson, 23-10247, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Affirming district court’s denial of motion to compel government to file motion to reduce defendant’s sentence.