Take the Fifth

Designated for publication

• Boudreaux v. Louisiana State Bar Association, 22-30564, appeal from E.D. La.
  • Smith, J. (King, Smith, Elrod), First Amendment
  • Affirming in part and reversing in part district court’s dismissal of attorney’s First Amendment forced-speech and forced-association claims against state bar association and denial of preliminary injunction; remanding; and rendering injunction with respect to plaintiff only, holding that some of the LSBA’s activities are still engaged in speech that is non-germane to the mission of regulating the practice of law and promoting the welfare of the practice and that opt-out procedures were insufficient to remedy the First Amendment injury.
  • The Court held that the plaintiff’s claims were not moot that any requirement for membership in the LSBA violates the First Amendment, regardless of germaneness of the LSBA’s speech; that the opt-out procedures are inadequate; and that the LSBA’s post-McDonald activity fails the germaneness requirement. However, the Court affirmed the district court’s holding that the claims were moot that the LSBA’ pre-McDonald speech violated the First Amendment and that future speech was speculative and claims related thereto not ripe.
  • The Court rejected the plaintiff’s claim that mandatory bar membership is per se unlawful, regardless of germaneness of the LSBA’s speech. “The LSBA violates Boudreaux’s speech and association rights only if its speech is non-germane to the regulation of lawyers or the improvement of legal services.” The Court held that it was bound by Keller v. State Bar of Cal., 496 U.S. 1 (1990), and under the rule or orderliness by McDonald v. Longley, 4 F.4th 229 (5th Cir. 2021), and that these authorities were not implicitly overruled by the public-sector-union decision in Janus v. Am. Fed’n of State, Cnty., and Mun. Emps., Council 31, 138 S. Ct. 2448 (2018).
  • The Court rejected the plaintiff’s argument that the LSBA’s policy positions on taxation of legal services and access-to-justice initiatives–arguments that were not properly included in a list of stipulated challenged activities or raised at trial–as nevertheless “directly related to the regulation of the legal profession and the provision of legal services.”
  • The Court, however, agreed with the plaintiff’s germaneness challenge to the LSBA’s serious of “Wellness Wednesday” tweets with tips on healthy eating and exercise, and then took the limitation principle at issue even further to discuss other distinctions in bar association speech. “Those statements fail the germaneness test from McDonald and Keller because they do not sufficiently relate to legal practice or the legal profession. Even assuming healthier lawyers are generally more effective lawyers, the LSBA is not an all-encompassing wellness service that may comment on every facet of lawyers’ health and fitness. … But if bar associations may opine, advise, and inform on anything that they deem is generally conducive to attorney health and wellness, there is no limiting principle. If a bar association may tout the health benefits of broccoli, may it also advise attorneys to practice Vinyasa yoga, adhere to a particular workout regimen, or get married and have children, if it believes that those activities improved attorney wellness and therefore the quality of legal services in the state? How remote or indirect can the purported benefit to legal services be? The LSBA offers no clear answer, nor can we discern any principled line once we allow advice that is not inherently tied to the practice of law or the legal profession. The germaneness standard therefore requires inherent connection to the practice of law and not mere connection to a personal matter that might impact a person who is practicing law. Promoting diversity efforts at law firms is germane, but opining on affirmative action is not. Raising awareness of the failure of firms to retain women is germane, but speech encouraging or discouraging abortion (or abortion insurance coverage for attorneys) is not. Similarly, advice about software designed for attorneys’ use is germane, but recommending that all attorneys purchase new iPhones is not.” As such, the Court also specifically agreed with the plaintiff as to a series of tweets regarding technology and safety announcements.
  • The Court also agreed with the plaintiff’s challenge to LSBA notifications to lawyers about the annual Red Mass at the St. Louis Cathedral and regarding holiday charity drives for Christmas and Halloween. The Court held that charitable and pro bono opportunities specific to the legal profession would be permissible, but that “generic pro bono and charitable opportunities” are not germane. “If the LSBA wishes to engage in charitable activities and give back to the community, it should do so. But those efforts must be germane, and they generally are not germane unless they involve the LSBA’s character as a legal organization rather than a generic organization or a collective of charity-minded individuals.”
  • The Court also agreed with the plaintiff’s challenge to the LSBA’s sharing of a Reuters article about the American Bar Association’s focus on student loan debt; “[i]f anything, the thrust of the article is backhanded support for student-debt relief, a nakedly political position. … The germaneness test is not satisfied just because a particular personal matter might impact a person who is practicing law.”
  • The Court then agreed with the plaintiff’s challenge to a rainbow-flag LSBA graphic and link to a History.com article about gay rights during June for “LGBT Pride Month.” The Court acknowledged that, in its McDonald decision, it had upheld the Texas Bar’s initiatives for diversification of the legal profession for minority, women, and LGBT attorneys, it did so “because the programs were tied to the diversity of lawyers, which in turn was tied to the quality of legal services”; but that the LSBA’s pride flag icon and linked article “is a general statement about ‘LGBT Pride Month’ that offers neither advice nor opportunities, and it is not made specific to lawyers” and that the linked article “is a generic history of gay rights in the United States, tinged with various normative claims about society.” The Court held, “[T]here is a difference between diversity in the profession and diversity in broader society, with which LSBA lawyers may be concerned. One is germane, the other not.”
  • The Court then rejected the LSBA’s argument that there should be a de minimis exception to McDonald‘s germaneness rule because the standard would put judges in a difficult position.
  • The Court held that the LSBA’s opt-out provisions were adequate, and did provide notice of its speech activities, but that, “[t]o the extent Boudreaux is harmed in this case, it is not from lack of notice [but] from the LSBA’s decision to promote non-germane speech in the first place.”
  • The Court remanded to the district court to determine the proper remedy, and rendered a preliminary injunction “preventing the LSBA from requiring Boudreaux to join or pay dues to the LSBA pending completion of the remedies phase.”

• U.S. v. Grigsby, 22-30764, appeal from M.D. La.
  • Higginbotham, J. (Higginbotham, Smith, Elrod), tax law
  • Affirming district court’s judgment rejecting research and development tax credits and upholding resulting tax deficiency.
  • The Court affirmed the district court’s summary judgment in favor of the government that the challenged expenses were not qualified research projects under the Tax Code. The Court held first that the IRS’s determination was entitled to a presumption of correctness, a “low bar”; and that, even if it were not, the district court’s judgment still met the summary judgment standard. The Court held that the district court did not err in finding that the construction company’s “products” were inextricable from the construction processes and were therefore processes, and that the district court did not abuse its discretion in excluding the construction processes under Rule 37 for failure to include those in the company’s discovery responses.
  • The Court also held that the “research” was “funded,” and therefore excluded from the tax credit, because by contract the construction company gave up all rights in the products to the respective customers on the projects.

Unpublished

• U.S. v. Alatan, 22-20464, appeal from S.D. Tex.
  • per curiam (King, Haynes, Graves), criminal, sentencing
  • Affirming 120-month sentence on conviction of conspiracy to commit healthcare fraud, aiding and abetting healthcare fraud, and engaging in monetary transactions in property derived from specified unlawful activity.

• Horton v. Allstate Vehicle & Property Insurance Co., 22-20533, appeal from S.D. Tex.
  • per curiam (Jolly, Southwick, Oldham), insurance
  • Reversing summary judgment for insurer on coverage dispute, holding that plaintiff’s expert’s testimony had not been excluded and created a genuine issue of material fact.

• U.S. v. Putnam, 22-51061, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal, search and seizure
  • Affirming conviction of possession and distribution of child pornography, upholding denial of motion to suppress.

• Boyd v. Thomas, 22-60485, appeal from N.D. Miss.
  • per curiam (Dennis, Elrod, Willett), prisoner suit
  • Affirming dismissal of Mississippi state prisoner’s § 1983 suit for failure to exhaust administrative remedies.

• U.S. v. Thomas, 23-10203, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Bell, 23-10628, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ibarra-Carranza, 23-20009, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Howard v. City of Shreveport, 23-30590, appeal from W.D. La.
  • per curiam (Elrod, Haynes, Douglas), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Louisiana state prisoner’s § 1983 claims.

• Ruiz-Ramirez v. El Chalala, Inc., 23-40055, appeal from S.D. Tex.
  • per curiam (Clement, Duncan, Douglas), § 1983
  • Affirming dismissal of pro se civil rights action.

• U.S. v. Bell, 23-50168, appeal from W.D. Tex.
  • per curiam (King, Haynes, Graves), criminal, sentencing
  • Affirming 120-month sentence on conviction of being a felon in possession of a firearm.