Take the Fifth

Designated for publication

• Robinson v. Ardoin, 22-30333, appeal from M.D. La.
  • Southwick, J. (King, Elrod, Southwick), Voting Rights Act
  • Vacating district court’s preliminary injunction to enjoin Louisiana legislature’s 2022 congressional redistricting maps on the basis that the failure to create a second majority-Black district violated section 2 of the Voting Rights Act, and remanding for further proceedings to allow the legislature until January 15, 2024, to determine whether to adopt new maps to be used in the 2024 elections.
  • The Court summarized: “The district court did not clearly err in its necessary fact-findings nor commit legal error in its conclusions that the Plaintiffs were likely to succeed on their claim that there was a violation of Section 2 of the Voting Rights Act in the Legislature’s planned redistricting. Nevertheless, the district court’s 2022 preliminary injunction, issued with the urgency of establishing a map for the 2022 elections, is no longer necessary. After oral argument, we are convinced the parties can proceed beyond the stage of a preliminary injunction to accomplish the following tasks. We will allow the Louisiana Legislature until January 15, 2024, to enact a new congressional redistricting plan, to consider but reject adopting a new plan, or for the defendant Secretary of State and/or Attorney General to inform the district court that no special session of the Legislature will be called for this purpose. … The district court is not to conduct any proceedings on the merits of the claim until after the Louisiana Legislature concludes its consideration of adopting a new plan, or the district court is informed that no new plan will be considered, or January 15, 2024, whichever comes first. The district court will also have discretion to grant limited additional time if requested. The present uncertainty of what will occur by January 15 leaves the next steps contingent. If the Legislature adopts a new plan, then proceedings in district court can begin immediately after that occurs. If the Plaintiffs object to the plan, then the district court will again need to consider whether the plan is consistent with Section 2 of the Voting Rights Act or, instead, whether another preliminary injunction is needed. On the other hand, as soon as it becomes clear there will be no new plan to consider, the district court should proceed beyond the preliminary injunction stage for review of H.B. 1. It should conduct a trial on the merits of the validity of the plan, and, if held to be invalid, decide on a plan for the 2024 elections.”

• Doe v. Burleson County, 22-50918, appeal from W.D. Tex.
  • Engelhardt, J. (Southwick, Engelhardt, Wilson), municipal liability
  • Affirming summary judgment dismissal of § 1983 claims against county arising from county official’s alleged sexual assault of employee, holding that the county official lacked final policymaking authority over the specific area implicated by the employee’s allegations.

• VanDerStok v. Garland, 23-10718, appeal from N.D. Tex.
  • Engelhardt, J. (Willett, Engelhardt, Oldham), Oldham, J., concurring; firearms regulation, administrative law
  • Affirming in part and vacating in part district court’s summary judgment vacating Bureau of Alcohol, Tobacco, and Firearms’ Final Rule redefining “firearm” and “frame or receiver” for purposes of enforcement under the Gun Control Act to capture modern firearms such as the AR-15 and various semi-automatic handguns, as well as gun kits and “ghost guns,” on the basis that the ATF’s rule outstripped Congress’s dictates under the GCA. The plaintiffs challenged the Final Rule’s proposed definition of “frame or receiver ” to include incomplete frames or receivers and the proposed definition of “firearm” to include weapon parts kits.
  • “The GCA includes as a ‘firearm’ the ‘frame or receiver’ of a weapon. 18 U.S.C. § 921(a)(3)(C). The GCA itself does not define the term ‘frame or receiver.’ See id. The Final Rule, however, newly defines the term ‘frame or receiver’ to include ‘a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.’ 87 Fed. Reg. at 24739.” Although ATF purported to include within the Final Rule the ability to regulate firearms to reflect modern changes in firearms, the Court held that “the meanings of statutes do not change with the times. … As such, the proposed definition is an impermissible extension of the statutory text approved by Congress.” The Court also compared the statutory definition of “firearm,” which included that the firearm is deigned to “or may be readily converted to” expel a projectile, with the statutory provision of “frame or receiver,” which contained no specific definition or reference to “may be readily converted,” to bolster its conclusion that incomplete frames or receivers or gun kits could not be regulated under the statute.
  • The Court also held that the new definition of “firearm” to include unassembled parts of a firearm was foreclosed when Congress in the GCA changed the prior statutory definition of “firearm” in the Federal Firearms Act. The FFA definition has included “any part or parts of” a firearm, but the GCA omitted the “part or parts of” language and replaced it with the “frame or receiver of any such weapon.” The Court held, “[I]n defining ‘firearm’ under the GCA, Congress used more constrained language aimed at specifically named weapon parts, not any and all combinations of weapon parts that could later be assembled into a functioning weapon. In sum, the word ‘parts’ is conspicuously absent from the definition of ‘firearm’ in section 921, despite Congress’s consistent—and meticulous—use of the word in other statutory provisions.” The Court appeared to focus on the word “readily” in the “firearms” definition in the GCA, to differentiate weapons kits from a disassembled weapon that could be converted into an operable weapon within 30 seconds; “[a]ssembling a weapon parts kit takes much longer than thirty seconds, and the process involves many additional steps.”
  • The Court also looked to the long, pre-founding, tradition of at-home gun manufacture to illustrate that Congress could have specifically regulated weapons kits and chose not to.
  • The Court rejected public policy arguments for allowing the ATF to expand the scope of the GCA through the Final Rule to keep up with modern weapons developments. “Where the statutory text does not support ATF’s proposed alterations, ATF cannot step into Congress’s shoes and rewrite its words, regardless of the good intentions that spurred ATF to act.”
  • Judge Oldham concurred, “to explore additional problems with the Final Rule[,]” proposing an intent by ATF to destroy traditional practices of “law-abiding Americans” by regulating “the modern analogue to the homemade rifle Daniel Boone’s father gave him when he was 12”: “ATF’s overarching goal in the Final Rule is to replace a clear, bright-line rule with a vague, indeterminate, multi-factor balancing test. ATF’s rationale: The new uncertainty will act like a Sword of Damocles hanging over the heads of American gun owners. Private gunmaking is steeped in history and tradition, dating back to long before the Founding. Millions of law-abiding Americans work on gun frames and receivers every year. In those pursuits, law-abiding Americans (and the law-abiding gun companies that serve them) rely on longstanding regulatory certainty to avoid falling afoul of federal gun laws. But if ATF can destroy that certainty, it hopes law-abiding Americans will abandon tradition rather than risk the ruinous felony prosecutions that come with violating the new, nebulous, impossible-to-predict Final Rule.”

• Petteway v. Galveston County, 23-40582, appeal from S.D. Tex.
  • per curiam (Jones, Barksdale, Elrod), Voting Rights Act
  • Affirming district court’s injunction against County’s redistricting plan that eliminated a majority-minority county commissioner district, but requesting an en banc poll on the basis of the panel’s disagreement with binding Circuit precedent that the Black and Hispanic populations in the county may be aggregated to determine compliance with section 2 of the Voting Rights Act.

Unpublished

• Levy v. UNUM Group, 22-20660, appeal from S.D. Tex.
  • per curiam (Southwick, Engelhardt, Wilson), insurance
  • Affirming dismissal of plaintiff’s claims for disability insurance proceeds as time-barred.

• Gonzalez v. Reilley, 22-40195, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Higginson), prisoner suit
  • Affirming in part dismissal of deliberate indifference claims against various prisoner official defendants, but modifying judgment to render dismissal of one defendant for lack of personal jurisdiction a dismissal without prejudice.

• Golden v. City of Longview, 22-40785, appeal from E.D. Tex.
  • per curiam (Richman, Haynes, Duncan), employment discrimination
  • Affirming dismissal of city employee’s claims that he was terminated due to his disability.

• U.S. v. Duberek, 23-10071, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming life sentence for conviction of interstate domestic violence resulting in the death of the victim.

• U.S. v. Villarreal-Flores, 23-10372, appeal from N.D. Tex.
  • per curiam (Jolly, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Rojas-Meliton v. Lumpkin, 23-20308, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Wilson), habeas corpus
  • Affirming denial of motion to reopen appeal period for denial of § 2254 petition.

• U.S. v. Pennington, 23-30038, appeal from W.D. La.
  • per curiam (Jones, Barksdale, Elrod), criminal, Miranda rights
  • Affirming conviction of conspiring to advertise the distribution of child pornography, upholding the district court’s failure to suppress statements to law enforcement.

• U.S. v. Escorcia-Martinez, 23-40049, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Sanders, 23-40242, appeal from E.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, search and seizure
  • Affirming conviction of possession of a firearm by a felon, upholding denial of motion to suppress.

• U.S. v. Ordonez, 23-50265, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Daniels, 23-50423, appeal from W.D. Tex.
  • per curiam (Clement, Duncan, Douglas), False Claims Act
  • Affirming judgment in favor of government on False Claims Act that defendant defrauded the Department of Veterans Affairs of more than $9 million.

• Walker v. Kijakazi, 23-60116, appeal from N.D. Miss.
  • per curiam (Southwick, Engelhardt, Wilson), social security
  • Affirming denial of benefits.