Take the Fifth

Designated for publication

• Vote.Org v. Paxton, 22-50536, appeal from W.D. Tex.
  • Southwick, J. (Barksdale, Southwick, Higginson), Higginson, J., dissenting; voting rights, election law, standing
  • Reversing summary judgment in favor of voter advocacy organization, and rendering judgment in favor of Texas officials (actively defended by intervenor attorney general) rejecting organization’s challenge to Texas’s original “wet” signature requirement as a violation of the Civil Rights Act of 1964 and the First and Fourteenth Amendments’ protections against undue burdens on the right to vote where the organization’s smartphone app only allowed for a digitized signature.
  • The Court held that Vote.org had organizational standing, as its allegations of diversion of resources after it had to shut down the app sufficiently showed injury-in-fact and traceability to the state’s enforcement of the wet signature rule. The Court also held that Vote.org had sufficient position as a vendor and voting rights organization to have standing under the prudential principle of third-party standing asserting the rights of those who would try to register to vote using its app, and that § 1983 was an appropriate vehicle for that third-party standing.
  • The Court then held that §§ 10101(a)(1) amd 10101(a)(2)(B) of the Civil Rights Act of 1964 conferred an individual right that could be enforced under a private remedy under § 1983.
  • On the merits of the Civil Rights Act claim, the Court established the materiality analysis for the state requirement at issue: “(1) how substantial is the State’s interest in the ‘requisite to voting’ in which some ‘error or omission’ exists; (2) does that interest relate to ‘determining whether such individual is qualified under State law to vote in such election’; and (3) under the totality of the circumstances, what is the strength of the connection between the State’s interest and the measure, i.e., how well does the measure advance the interest?” (Internal citations omitted). The Court also held that the materiality provision does not require a showing racial discrimination: “[T]he Materiality Provision is not textually limited to protecting only one race of voters in order to more effectively reach subtle forms of racial discrimination, i.e., requirements that are pretexts for racial discrimination.”
  • Applying the materiality analysis to the wet signature rule, the Court identified as the central question of the analysis: “a premise for all the statutory qualifications: Are the individuals who are trying to register actually who they say they are?” The Court held that the wet signature rule survived this challenge: “We accept what Texas is arguing now, that a reasonable understanding of the legislative judgment is that physically signing the form with the warnings in front of the applicant, threatening penalties for perjury and stating the needed qualifications, has some prospect of getting the attention of many applicants and dissuading false statements that an electronic signature, without these warnings, does not.”
  • The Court also held that the organization was not successful on its First Amendment challenge. It held that the burden imposed by the wet signature requirement was “only slight,” while it guaranteed the State’s interest in integrity of the voter-registration process.
  • Judge Higginson dissented. While agreeing with most of the majority’s analytical framework, he disagreed that Texas’s wet signature requirement was material to determining whether a Texan is qualified to vote under Texas law. “Although I suppose it might hypothetically be possible that a wet-signature requirement could materially determine whether a voter is qualified under Texas law, Texas—and the majority—cannot point to any evidence of the requirement’s materiality in the substantial record before us, on which we must decide this case. Instead, Texas officials’ admissions that they do not use the wet signature in any capacity to determine a voter’s qualifications slams the door shut on any argument that [a wet signature] is material.” (Internal quotation marks and citation omitted).

• In re Ryan, 23-10168, on petition for writ of mandamus to N.D. Tex.
  • Higginson, J. (Clement, Southwick, Higginson), Clement, J., concurring; mandamus, Crime Victims’ Rights Act
  • Denying writ of mandamus to victims’ families seeking remedies under the Crime Victims’ Rights Act, arising from criminal fraud charges against Boeing based on plane crashes by the 737 Max aircraft.
  • The Court held that the CVRA and the Speedy Trial Act did not confer authority on the district court to direct government prosecutors on how to act under a deferred prosecution agreement (“DPA”) with Boeing. “Intervention under the supervisory authority for the remedies that the victims’ families seek, however, would be inappropriate. In their requests to excise the conditional-release provision for Boeing, for example, the victims’ families ask the court to parse the DPA by preserving most of the agreement negotiated between the parties, while simultaneously nullifying what likely was the primary consideration Boeing received from the agreement. Significantly, in the parallel guilty-plea context, this type of judicial line-item veto is foreclosed by Federal Rule of Criminal Procedure 11, binding circuit caselaw, and principles of fairness fundamental to the plea-agreement process.”
  • However, the Court held that the district court incorrectly found that the CVRA provided no remedy to the victims’ families, because the courts have supervisory power over the prosecution process once it is initiated, much as they do in the Rule 11 guilty plea context. Nevertheless, the Court held that mandamus intercession is premature. “Thus far, the district court has demonstrated careful competence that, whereas it cannot substantively revise the DPA between the Government and Boeing, it nonetheless must uphold crime victims’ statutory rights at every stage of the court’s criminal proceedings. If a sought-for final stage is a Government motion to dismiss, we are confident, as in Dean, that the district court will assess the public interest according to caselaw as well as the CVRA, including violations already admitted to, as well as any other circumstances brought to its attention by the victims’ families.”
  • Judge Clement concurred, “to note that our decision should not be read as holding that the district court was prohibited from setting aside the DPA at an earlier stage of these proceedings—including upon motion from the victims’ families—after finding that the victims’ CVRA rights had been violated.”

• Price v. Valvoline, L.L.C., 23-20131, appeal from S.D. Tex.
  • Clement, J. (Clement, Southwick, Ho), Ho, J., concurring; employment discrimination
  • Affirming summary judgment for plaintiff’s former employer, rejecting claims of racial discrimination in his termination, finding that the plaintiff’s “employment was terminated due to his repeated absenteeism and that the allegedly race-motivated comments directed towards him were not objectively severe or pervasive enough to create a hostile work environment.”
  • Judge Ho concurred, agreeing with the holding that the plaintiff’s termination was due to absenteeism, but to emphasize his feelings that “diversity” is a proxy for discrimination: “I write separately to highlight Plaintiff’s contention that the use of the term ‘diversity’ may be evidence of his employer’s discriminatory intent. Specifically, Plaintiff alleges that a plant manager told a supervisor that the company ‘needed more diversity in the workplace.’ Plaintiff took the reference to ‘diversity’ to mean that the company should hire fewer African Americans in the future, due to the racial composition of the existing workforce at the plant. Cases like this reflect the growing concern that diversity has increasingly become a code word for discrimination.”

• Illumina, Inc. v. Federal Trade Commission, 23-60167, appeal from FTC order
  • Clement, J. (Clement, Graves, Higginson), antitrust, nondelegation, removal power
  • Vacating FTC’s finding of a Clayton Act violation and ordering the unwinding of a merger between Illumina, Inc. and Grail, Inc., holding that the FTC “applied an erroneous legal standard at the rebuttal stage of its analysis”; and remanding for reconsideration under the proper analytical framework.
  • Illumina had created Grail as a wholly-owned subsidiary, as part of its DNA-sequencing business, specifically to work toward multi-cancer-early detection (“MCED”); then, after spinning off Grail in order to attract outside investment to raise capital for Grail’s MCED research, Illumina raised money to re-acquire Grail and the MCED test to market. The FTC had reversed a determination by an ALJ that the re-acquisition would harm competition in the MCED market.
  • The Court first held that the FTC’s adjudication process does not violate the nondelegation doctrine. The Court also rejected the argument that the FTC unconstitutionally exercised executive powers while insulated from presidential removal power, because the FTC was “vested with quasi-legislative/quasi-judicial authority rather than purely executive authority.” The Court rejected the petitioner’s due process arguments, because agencies “can, and often do, investigate, prosecute, and adjudicate rights without violating due process.” Finally, the Court rejected an equal protection challenge, because there was a rational basis for the division of some antitrust enforcement authority to the FTC and some to the Department of Justice.
  • On the merits, the Court first held that the FTC’s Complaint Counsel had established a prima facie case of a relevant market for MCED tests and that the merger was likely to substantially lessen competition in that market. The Court then held that, because the Complaint Counsel had included in its prima facie case evidence that the “open offer” mechanism by which Illumina sought to remedy any anti-competitive effects of the merger was ineffective, the burden on Illumina to rebut the prima facie case was heightened. The Court then held, “This is where the Commission erred. The Commission held Illumina to a rebuttal standard that was incompatible with the plain language of Section 7 of the Clayton Act, which only prohibits transactions that will ‘substantially’ lessen competition. 15 U.S.C. § 18. And this error pervaded the Commission’s analysis of the Open Offer, as the Commission invoked the wrong standard in five separate instances. Specifically, the Commission held that Illumina was required to ‘show that the Open Offer would restore the pre-[merger] level of competition,’ i.e., ‘eliminate Illumina’s ability to favor Grail and harm Grail’s rivals.’ In effect, Illumina could only rebut Complaint Counsel’s showing of a likelihood of a substantial reduction in competition with a showing that, due to the Open Offer, the merger would not lessen competition at all. This was legal error.”

Unpublished

• Morales-Cardoso v. Garland, 21-60818, petition for review of BIA order
  • per curiam (Higginbotham, Stewart, Southwick), immigration
  • Denying Mexican citizen’s petition for review of BIA order denying motion for reconsideration.

• Sacks v. Texas Southern University, 22-20474, appeal from S.D. Tex.
  • per curiam (Davis, Engelhardt, Oldham), Title VII, employment discrimination
  • Affirming 12(b)(6) dismissal of Title VII sex discrimination and retaliation claims and Equal Protection Clause claim, summary judgment dismissal of Title VII race discrimination claim, and judgment on jury verdict in favor of defendant on Equal Pay Act claim.

• U.S. v. Collins, 22-51042, appeal from W.D. Tex.
  • per curiam (Smith, Graves, Wilson), criminal, Sixth Amendment
  • Affirming conviction of conspiracy to possess with the intent to distribute fifty grams or more of methamphetamine.

• U.S. v. Juarez, 22-51118, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine.

• Burke v. Soland, 23-20236, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), prisoner suit
  • Affirming dismissal of pretrial detainee’s § 1983 claims.

• Sabre Industries, Inc. v. Module X Solutions, L.L.C., 23-30122, appeal from W.D. La.
  • per curiam (Smith, Elrod, Graves), business torts, unfair trade practices
  • Affirming summary judgment in favor of defendant on various business tort and unfair trade practices act claims, and affirming denial of attorneys’ fees to defendant.

• Gordon v. Greene, 23-30333, appeal from M.D. La.
  • per curiam (Clement, Duncan, Douglas), § 1983
  • Affirming dismissal of § 1983 claims.

• Pruco Life Insurance Co. v. Dwyer, 23-30513, appeal from E.D. La.
  • per curiam (Jolly, Higginson, Duncan), insurance
  • Affirming judgment in favor of ex-fiance as beneficiary of life insurance proceeds, in interpleader suit brought by insurance company where decedent’s estate challenged award of proceeds to ex-fiance.

• Hamilton v. City of Lott, 23-50498, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), § 1983, whistleblower, supplemental jurisdiction
  • Affirming dismissal of § 1983 claim, but vacating continued exercise of supplemental jurisdiction over Texas-law whistleblower claim and dismissal of that claim, remanding to district court to remand state claim to state court.

• U.S. v. Rodriguez-Perez, 23-50535, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.