Take the Fifth

Designated for publication

• Lewis v. U.S., 21-30163, c/w 23-30387, appeal from E.D. La.
  • Jones, J. (Jones, Higginson, Duncan), Higginson, J., concurring; Clean Water Act, mootness
  • Vacating district court’s judgment declining to review the Corps of Engineers’ jurisdictional determination under the Clean Water Act that landowner’s property contained jurisdictional wetlands, which determination the Corps had reached after the remand by the district court of an earlier jurisdictional determination. The Corps had then withdrawn the second jurisdictional determination and argued that the appeal was moot.
  • The Corps’ jurisdictional determination of wetlands status was “derived from connecting (a) roadside ditches and (b) a culvert to (c) an unnamed non-‘relatively permanent water’ tributary, then to (d) Colyell Creek (a ‘relatively permanent water’) several miles away, and ultimately to (e) the traditionally navigable waterway of Colyell Bay ten to fifteen miles from the Lewis property.”
  • The Court held “that the Supreme Court’s recent decision in Sackett v. EPA controls the undisputed facts here and mandates that Appellants’ property lacks ‘wetlands [that] have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”‘ 143 S. Ct. 1322, 1340 (2023) (quoting Rapanos v. United States, 547 U.S. 715, 742, 126 S. Ct. 2208, 2226 (2006) (plurality opinion of Scalia, J.)). Consequently, the property at issue is not subject to federal jurisdiction.”
  • The Court held as to mootness that the Corps’ attempt to withdraw the jurisdictional determination “runs afoul of the ‘voluntary cessation’ exception to mootness” because “[t]here is no basis for a reasonable expectation of non-recurrence in this matter.” The Court also held that allowing the appeal to be moot and the Corps to engage in a new jurisdictional determination would impermissibly put finality of the agency decision at the whim of the agency.
  • Judge Higginson concurred, as he would have rested the mootness determination solely on the voluntary cessation analysis and not also engaged in the Hawkes analysis regarding agency decision finality.

• Doe v. Snap, Inc., 22-20543, appeal from S.D. Tex.
  • per curiam (voting against en banc rehearing: Richman, Jones, Stewart, Southwick, Haynes, Graves, Higginson, Douglas, JJ.; voting for en banc rehearing: Smith, Elrod, Willett, Duncan, Engelhardt, Oldham, Wilson, JJ.; not participating in poll: Ho, Ramirez, JJ.), Elrod, J., dissenting; Communications Decency Act
  • Denying en banc rehearing of panel decision wherein the panel, bound by a prior Circuit decision under the rule of orderliness, affirmed the dismissal of the plaintiff’s claims against the company that owns Snapchat that arose from the plaintiff’s use of Snapchat to send him sexually explicit photos as part of a scheme to sexually abuse the plaintiff when he was 15. The panel was bound by a prior interpretation of Section 230 of the Communications Decency Act. That language provides, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).
  • Dissenting from the denial of en banc rehearing, Judge Elrod would hold that the prior interpretation of the CDA was “atextual,” and that the “sweeping immunity for social media companies” left in place by that interpretation was such “that the text [of the statute] cannot possibly bear.” The dissent observed that, while “[s]ection 230 closes off one avenue of liability by preventing courts from treating platforms as the ‘publishers or speakers’ of third-party content[,] [s]ub-section (c)(1) and (c)(2) say nothing about other avenues to liability such as distributor liability or liability for the platforms’ own conduct.”
  • The dissent also noted that publisher or speaker liability should have nothing to do with product liability, such as the claims brought by the plaintiff here. “Immunity from design defect claims is neither textually supported nor logical because such claims fundamentally revolve around the platforms’ conduct, not third-party conduct. … That our interpretation of Section 230 is unmoored from the text is reason enough to reconsider it. But it is unmoored also from the background legal principles against which it was enacted.”
  • The dissent then generally addressed the atextual, policy-based approach of the original Circuit precedent that had bound the panel: “Deviation from statutory text is often justified by some using an appeal to the needs of a changing world. … Our jurisprudence on Section 230 perhaps shows why such attempts at judicial policymaking are as futile as they are misguided. For here, our atextual transformation of Section 230 into a blunt instrument conferring near-total immunity has rendered it particularly ill-suited to the realities of the modern internet. As the internet has exploded, internet service providers have moved from ‘passive facilitators to active operators.’ They monitor and monetize content, while simultaneously promising to protect young and vulnerable users. … Today’s ‘interactive computer services’ are no longer the big bulletin boards of the past. They function nothing like a phone line. Rather, they are complex operations offering highly curated content.”

• Netflix, Inc. v. Babin, 22-40786, appeal from E.D. Tex.
  • Willett, J. (Wiener, Willett, Douglas), Younger abstention, mootness
  • Affirming district court’s injunction against state criminal prosecution of Netflix by prosecutor over Netflix’s streaming of Cuties, “a controversial film starring preteen girls who participate in a dance competition”; the federal court’s injunction was based on a narrow exception to the Younger abstention doctrine where the underlying state criminal prosecution is itself a bad faith constitutional violation.
  • The Court first held that the local prosecutor’s dismissal of an initial indictment under a Texas statute that had subsequently been declared facially unconstitutional by a Texas appellate court in a separate matter, and issuance of a policy to preclude prosecutions under that statute, did not moot Netflix’s federal request for pre-prosecution habeas relief as to that statute. The Court held that the prosecutor had not carried his “formidable burden” under the voluntary cessation analysis of showing that is was “absolutely clear” that re-prosecution under that statute would not occur, as he had dismissed the initial indictment without prejudice, while also re-indicting Netflix under a similar statute.
  • The Court then held that the bad faith exception to Younger applied: “While states certainly have a legitimate interest in the enforcement of their criminal laws, they have no such interest when the enforcement of those laws is carried out in bad faith. … Comity, the notion that largely undergirds the relational jurisprudence between state and federal courts, gives way once good faith does.”
  • The Court held that sufficient evidence supported the district court’s determination that the prosecutor acted in bad faith here. “We begin by noting the temporal element overlaying the criminal prosecution of Netflix. … Babin waited more than 400 days from the date of the first indictment to multiply the proceedings under a more severe statute—a lull that abruptly ended after Netflix petitioned for relief. We can begin, then, to trace the abozzo of retaliation from the timeline alone. … Babin multiplied the first indictment into four new ones after Netflix filed its habeas petition. The multiplicity of prosecutions is a hallmark of bad faith under Younger, especially when those charges are brought under more severe criminal statute—a practice we have called ‘upping the ante.’ We also cannot ignore the way in which Babin secured all five indictments against Netflix. Rather than show the entire film to either of the empaneled grand juries, Babin showed only curated clips and images of the most provocative scenes.”
  • The Court emphasized that it was operating under a clear-error review as to the fact-findings at the preliminary injunction stage. “Taken one by one, Babin’s arguments are well taken. But we agree with the statement of counsel for Netflix made at oral argument that this case looks like a ‘mosaic’ of bad faith, largely pieced together with credibility determinations that only the district court was able to make. However persuasive we might find Babin’s arguments individually, we cannot help but step back and conclude that the whole picture does not resemble what we would otherwise presume to be a good-faith prosecution.”

• Colony Insurance Co. v. First Mercury Insurance Co., 22-51114, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), insurance
  • Affirming summary judgment for second insurance company on first insurance company’s claim that the second insurer was liable to contribute the full amount of a settlement paid by the first insurer in an underlying negligence action. The Court held that the second insurer was only responsible for property damages that occurred during the policy period and rejected the “all sums” approach to damages allocation.

• Delgado-Victorio v. Garland, 23-60102, petition for review of BIA order
  • Ho. J. (Davis, Southwick, Ho), immigration
  • Denying Mexican citizen’s petition for review of BIA order determining his removability and denying a request for continuance, holding that the petitioner’s Texas conviction for aggravated sexual assault with a deadly weapon is a crime of violence and therefore an aggravated felony for purposes of federal immigration law.

Unpublished

• Donalson v. McLeaish, 22-40758, appeal from E.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), § 1983
  • Affirming summary judgment dismissal of § 1983 claim against deputy who arrested plaintiff after he made an outburst in a courthouse hallway.

• U.S. v. Warren, 23-10154, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Burney, 23-10442, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. Alliance Group, Inc. v. Cardtronics USA, Inc., 23-30082, appeal from E.D. La.
  • per curiam (Higginbotham, Higginson, Duncan), settlement agreement
  • Affirming summary judgment in favor of defendant based on settlement agreement release of claims between plaintiff and a third party.

• U.S. v. Coleman, 23-30401, appeal from W.D. La.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming 264-month sentence on conviction of distribution of methamphetamines.

• U.S. v. Rodriguez-Flores, 23-60382, appeal from S.D. Miss.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
  • Affirming denial of motion for compassionate release.