Take the Fifth

Designated for publication

• In re Finn, 22-11092, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Willett), attorney discipline
  • Affirming three-judge district court panel’s decision imposing a 12-month suspension from practice in front of that court after substance-abuse-related inappropriate courtroom behavior and failures to show up for clients’ sentencing hearings.
  • The Court rejected the attorney’s argument that only the presiding judge can impose sanctions and that the 12-month term of suspension was excessive.

• U.S. v. Brooks, 22-30369, appeal from E.D. La.
  • Higginson, J. (Smith, Higginson, Willett), criminal, forfeiture
  • Affirming entry of forfeiture order as part of sentence for drug- and money-laundering conspiracy convictions.

• Young Conservatives of Texas Foundation v. Smatresk, 22-40225, appeal from E.D. Tex.
  • per curiam (Smith, Clement, Wilson), Ho, J., dissenting from denial of rehearing en banc; standing, preemption, immigration
  • Denying en banc rehearing (Richman, Jones, Smith, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Engelhardt, Oldham, Wilson, Douglas, JJ., voting against rehearing; Ho, J., voting for rehearing) of July 10, 2023, panel decision that reversed district court’s judgment in favor of plaintiffs and vacated permanent injunction that required the University of North Texas to charge out-of-state U.S. citizen students the same in-state tuition charged to state-resident illegal immigrants.
  • The panel had held that the district court erred in holding that 8 U.S.C. § 1623(a), a provision of the Illegal Immigration Reform and Immigrant Responsibility Act that provides that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State … for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit … without regard to whether the citizen of national is such a resident,” preempts Texas Education Code § 54.051, which provides for the out-of-state tuition differential. The Court held that the district court erred by rewriting the prohibitory “shall not” as to postsecondary education benefits for illegal immigrants into a mandatory “shall” for out-of-state U.S. citizens.
  • Judge Ho was the lone voter for en banc rehearing, and dissented from the denial of rehearing. He would hold that the Texas tuition-differential law is preempted by the IIRIRA. “Under Texas law, the overwhelming majority of U.S. citizens who come from one of the 49 other states must pay ‘900% higher’ tuition than in-state illegal aliens. 73 F.4th at 310. See also id. at 308 (‘$50 per semester credit hour’ versus ‘$458 per semester credit hour’). By bestowing greater benefits on illegal aliens than U.S. citizens when it comes to postsecondary education benefits, Texas law conflicts with federal law. It is therefore preempted.” After a lengthy analysis of the logical and textual structure of the federal law, and then of the potential remedies available, Judge Ho concluded, “I only know what I know. We could’ve vacated and remanded, but we didn’t. We could’ve granted rehearing en banc, but we didn’t. We could’ve taken this opportunity to enforce the federal guarantee of equality of treatment for U.S. citizens, but we didn’t.”

• Chavez v. Plan Benefit Services, Inc., 22-50368, appeal from W.D. Tex.
  • Stewart, J. (Wiener, Stewart, Engelhardt), standing, class action
  • Affirming certification of class in action against employee benefit administrator for alleged mismanagement of funds that plaintiffs contributed to benefit plans through their employers.
  • After rejecting the defendants’ overly narrow characterization of the plaintiffs’ claims, the Court held that the plaintiffs had standing to sue on behalf of unnamed class members from different contribution plans than the plans the named plaintiffs participated in. The Court acknowledged that there is a circuit-split on this issue of the disjuncture between the harm that a particular plaintiff encounters and the wider-ranging class remedy he seeks–that split being manifested in the sequence in which a court confronts the disjuncture, either through a standing analysis first or through resolving the issue through class certification first. The Court then “decline[d] to adopt either the class certification or standing approach because we have determined that Plaintiffs have standing under both theories.”
  • The Court described “the class certification approach” as follows: “[T]he approach requires Plaintiffs to first establish their standing to sue FBG for allegedly: (1) hiring itself to perform services to Plaintiffs’ insurance plans; (2) paying itself excessive compensation out of plan assets; and (3) arranging for excessive compensation to itself from other service providers to the plans. Assuming they can establish their standing to sue, we then proceed to the Rule 23 analysis to determine whether Plaintiffs can adequately and fairly represent the entire group’s interests. Plaintiffs may proceed as class representatives only after successfully clearing both hurdles.” The Court then noted that “the standing approach” has three different avenues: “(1) the Lewis test, requiring us to consider whether Plaintiffs’ harm is so unique that it warrants an isolated remedy that would be inappropriate if extended to other class members, see 518 U.S. at 358; (2) the Gratz test, which requires us to evaluate if Plaintiffs’ injury implicates ‘a significantly different set of concerns’ from the other potential class members, see 539 U.S. at 265; or (3) the Second or Eleventh Circuit tests for class representative standing, which are hybrid versions of the Lewis and Gratz tests.”
  • The Court analyzed the standing approach: “Plaintiffs and the other class members undoubtedly have the same interest: the return of trust funds or any other vindication of their financial harm. The two also share the same injury: FBG’s mismanagement of trust funds and charging of excessive fees deprived them of some portion of the benefits that they were entitled to. Again, that these injuries were the result of different agreements with different employers does not alter that the harm occurred directly from FBG’s misconduct pertaining to the trusts that it required participation in through the incorporation of certain provisions in each contract.”
  • On class certification, the Court rejected the defendants’ argument that 23(b)(1) and 23(b)(3) were not satisfied due to “the wide variety of plans included in the class” and the “sanctioning [of] hundreds of mini-trials because of the individualized nature of the class claims.” The Court upheld the district court’s finding that the differences in the various plans were only “limited fluctuations” and that they “were sufficiently similar.” Ultimately, the Court agreed that there were two claims central across all class members and plans: “whether FBG is or is not a fiduciary, and, if so, whether it breached their duties in that role.”

• Teeuwissen v. Hinds County, 22-60457, appeal from S.D. Miss.
  • Willett, J. (Smith, Higginson, Willett), breach of contract
  • Reversing dismissal of plaintiff’s suit to enforce contract against county for payment of legal fees, holding that statute’s empowerment of county board of supervisors to contract for legal services “by the year” authorized elected board to enter into contracts that bind subsequent elected officials to complete payments for that year.

• Johnson v. Lumpkin, 22-70005, appeal from N.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), habeas corpus
  • Denying petition for en banc rehearing for “fail[ure] to identify a ground warranting review by the en banc court”; but addressing the petition to address “ethical concerns posed by counsel’s behavior in this litigation.”
  • After rejecting the petitioner’s arguments that the district court judge erred in not recusing himself, on the basis that the district court’s show-cause order for sanctions was justified by petitioner’s counsel’s failure to cite to multiple contrary binding precedents that would have foreclosed the relief he sought without a good-faith argument for modification of the law, the petitioner brought an en banc rehearing petition that the Court held misstated the panel’s holding. “Especially given that counsel are already testing the limits of their duties of good faith and candor, we would have expected them to show better judgment in discerning whether to file a petition for rehearing en banc—especially one that badly misstates the opinion’s conclusion. A good-faith reading of the court’s opinion clearly shows that it does not hold what counsel says it holds. Petitions for rehearing en banc are an ‘extraordinary procedure’ that should be used only to bring the court’s attention to an issue of ‘exceptional public importance’ or one that ‘directly conflicts’ with on-point Supreme Court or prior Fifth Circuit precedent. 5th Cir. R. 35 I.O.P. Given the deficiencies discussed above, Johnson’s petition does not rise to that level. Counsel are strongly encouraged to confine future arguments to the limits imposed by applicable ethical rules.”

• U.S. v. Harris, 23-30030, appeal from E.D. La.
  • per curiam (Elrod, Ho, Oldham), criminal, religious freedom
  • Vacating district court’s order to involuntarily medicate defendant to render him competent to stand trial, and remanding to the district to consider statutory religious-freedom protections for defendant where he asserts that his religious faith requires him to abstain from psychiatric medications.
  • The Court held, “Harris was not required to name RFRA to invoke any protection it might offer him. He needed only to allege facts that, if true, would plausibly state a claim under the Act. This is particularly important because Sell requires the government to prove an important government interest, while RFRA requires the government to prove a compelling government interest when it applies to a protected religious belief or practice.” (Internal citations omitted).

Unpublished

• U.S. v. Acy, 22-10620, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, extrinsic evidence, sentencing
  • Affirming 365-month sentence and convictions for sex trafficking of a child and sex trafficking by force, fraud, or coercion.

• U.S. v. Alaniz-Pimentel, 22-10980, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Douglas), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Wright, 22-11199, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, sufficiency of evidence, guilty plea
  • Affirming conviction of production of child pornography, upholding the sufficiency of the factual basis for his guilty plea.

• U.S. v. Goudeau, 22-20567, appeal from S.D. Tex.
  • per curiam (King, Graves, Higginson), criminal, sentencing
  • Affirming 18-month sentence on revocation of supervised release.

• Johnson v. Turner, 22-30581, appeal from E.D. La.
  • per curiam (Duncan, Wilson, Schroeder, by designation), qualified immunity
  • Affirming qualified immunity dismissal of claims arising from traffic stop.

• Berry v. Sanders, 22-30698, appeal from M.D. La.
  • per curiam (Wiener, Elrod, Engelhardt), prisoner suit
  • Affirming dismissal of Louisiana state prisoner’s excessive force claim.

• Metro Service Group, Inc. v. Waste Connections Bayou, Inc., 22-30775, c/w 23-30002, appeal from E.D. La.
  • per curiam (Duncan, Wilson, Schroeder, by designation), breach of contract
  • Affirming judgment for plaintiff and denial of post-judgment motions on breach of contract, wrongful termination, and unjust enrichment claims.

• James v. Larcom, 22-51038, appeal from W.D. Tex.
  • per curiam (Clement, Graves, Wilson), § 1983
  • Affirming dismissal of plaintiff’s claims that his civil rights were violated when he was refused entry to the Record Division’s office for refusing to wear a mask.

• U.S. v. Samson, 22-51101, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Stringer v. Frito-Lay Corporation, 22-60518, appeal from S.D. Miss.
  • per curiam (Smith, Dennis, Elrod), subject matter jurisdiction
  • Affirming dismissal of fraud claims arising from company’s promotional contest, for lack of subject matter jurisdiction when plaintiff failed to provide information sufficient to establish diversity and amount in controversy.

• U.S. v. Santos-Flores, 23-10151, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
  • Affirming sentence for illegal reentry.

• U.S. v. Lopez-Castellanos, 23-40091, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Martinez, 23-50534, appeal from W.D. Tex.
  • per curiam (Dennis, Engelhardt, Oldham), criminal, detention
  • Remanding for district court to provide written reasons for denial of motion for extension of self-surrender date pending appeal of conviction.

• Lopez-Galleaz v. Garland, 23-60057, petition for review of BIA order
  • per curiam (Higginbotham, Stewart, Southwick), immigration
  • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order upholding the immigration judge’s denial of cancellation of removal, withholding of removal, and protection under the Convention Against Torture.