January 15-17, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Tong v. Lumpkin, 19-70008, appeal from S.D. Tex.
    • Duncan, J. (Smith, Higginson, Duncan), habeas corpus, ineffective assistance of counsel
    • Affirming denial of stay for habeas petitioner to return to state court to exhaust a procedurally defaulted IAC claim, denying additional certificate of appealability on IAC claim, and affirming denial of habeas relief on petitioner’s claim that state trial judge committed a due process violation in handling of voir dire.
    • The Court affirmed the denial of stay on the basis that the petitioner failed to show good cause for his failure to exhaust his IAC claim in state court, and that the IAC claim was not potentially meritorious. The Court held that the IAC claim was not potentially meritorious because hhis claim could not fit within the narrow exceptions to Texas’s prohibition on successive habeas petitions where the claim could have been raised in the initial state habeas proceeding, because the additional mitigating evidence that his trial counsel should have presented at his penalty phase would not have affected his eligibility for the death penalty.
    • On the merits of the IAC claim, the Court held that the petitioner failed to show that he was prejudiced by his trial counsel’s allegedly inadequate mitigation investigation.
    • As to the petitioner’s voir dire due process claim, the Court held that the claim was procedurally defaulted because the state court had denied it on a valid ground independent from the merits of the claim–that the petitioner had inadequately briefed it on state direct appeal. The Court held that ineffective assistance of appellate counsel in inadequately briefing the claim was not shown by the petitioner because he did not show that the result of his appeal would have been different.
  • Velasquez-Castillo v. Garland, 21-60681, on petition for review of BIA order
    • Graves, J. (Wiener, Graves, Douglas), immigration
    • Granting Honduran citizen’s petition for review of BIA order denying motion to reopen removal proceedings, vacating BIA order and remanding; holding “that this case is not moot, that the BIA erred in denying the motion to reopen without resolving the issue of the statutory provisions relating to an unaccompanied minor, and that the BIA failed to consider whether there was new and previously unavailable evidence in support of asylum eligibility.”
  • Southwest Airlines Co. v. Liberty Insurance Underwriters, Inc., 22-10942, appeal from N.D. Tex.
    • Graves, J. (Graves, Higginson, Ho), insurance
    • Reversing district court’s summary judgment for insurer on plaintiff’s claim for reimbursement under its cyber risk insurance policy, and remanding for further proceedings.
    • The Court held that all five categories of Southwest’s losses due to a system malfunction and resulting flight cancellations and delays, even those that resulted from business decisions made in the wake of the system malfunction, may fit within the broadly written “but-for” causation requirement of the cyber policy’s coverage provision, which reimbursed costs that would not have been incurred solely but for a system failure. The Court did not hold that there was coverage, but only that summary judgment in favor of the insurer was inappropriate.
    • The Court held that the consequential damages exclusion in the policy could not be interpreted as proposed by the insurer, because that interpretation “would do much more than ‘subtract’ from coverage; it would render much of the coverage under the policy completely illusory.” The Court also held that the “third parties” exclusion could not encompass Southwest’s customers and therefore could not exclude reimbursement for refunds paid to those customers.
  • Hodge v. Engleman, 22-11210, appeal from N.D. Tex.
    • Smith, J. (Higginbotham, Smith, Elrod), qualified immunity
    • Affirming dismissal on qualified immunity grounds of claims against officers who shot and killed man who led the officers on a brief car chase and then, after stopping, exited his vehicle with a gun in his hands. The Court based its affirmance on bodycam footage, treating the dismissal as an implicit conversion to summary judgment.
  • Consumers’ Research v. Consumer Product Safety Commission, 22-40328, appeal from E.D. Tex.
    • Willett, J. (Jones, Dennis, Willett), Jones, J., dissenting in part; administrative law, standing, appellate jurisdiction
    • Reversing district court’s decision that the CPSC was unconstitutional because the for-cause removal provision governing the President’s ability to remove a member of the CPSC creates a separation-of-powers violation, and instead holding that the Humphrey’s Executor exception requires more structural features insulating the commission from presidential control before giving rise to a constitutional violation.
    • The Court observed that this case “may attract the [Supreme] Court’s interest,” but that, “[a]s middle-management circuit judges, we must follow binding precedent, even if that precedent strikes us as out of step with prevailing Supreme Court sentiment.”
    • Judge Jones dissented in part. While she agreed with the majority’s holding that the Court had appellate jurisdiction and that the plaintiffs had standing, she would hold that the decision in Seila Law LLC v. CFPB, 591 U.S. –––, 140 S. Ct. 2183, 2198 (2020), supported finding that the CPSC presented a separation-of-powers violation.
  • Book People, Inc. v. Wong, 23-50668, appeal from W.D. Tex.
    • Willett, J. (Wiener, Willett, Douglas), First Amendment, standing, ripeness, sovereign immunity
    • Affirming district court’s preliminary injunction of Texas statute (Restricting Explicit and Adult-Designated Educational Resources Act, or “READER”) as to Commissioner of the Texas Education Agency, vacating injunction as to chair of the Texas State Library and Archives Commission and as to chair of the Texas State Board of Education, and remanding for further proceedings.
    • The Court held that the plaintiffs had standing. The bookseller plaintiffs “have an interest [under the First Amendment] in selling books without being coerced to speak the State’s preferred message–the ratings”; and that the bookseller plaintiffs also have demonstrated an economic injury. The Court held, however, that the injuries were only fairly traceable to the enforcement of the statute by defendant Morath, the Commissioner of the Texas Education Agency, and not to the other defendants.
    • The Court also held that the claims were ripe, even though the statute provided that the Education Commissioner may adopt rules and regulations and had proposed a rule that delegated certain powers to the local school districts. THe Court held that the “State does not explain how the proposed rule affects the rating system or the standards by which vendors are to rate library materials. Indeed, it can’t because this rule only affects the library-collection standards.”
    • The Court then held that Commissioner Morath was not entitled to sovereign immunity because the prospective injunctive relief fit within the Ex parte Young exception.
    • The Court held that plaintiffs had a likelihood of success on the merits that the statute, which requires school book vendors to issue ratings and label “sexually explicit” or “sexually relevant” library materials that they have ever sold or will sell to Texas public schools, violated the First Amendment. Under the statute, “[m]aterial rated sexually explicit may not be sold to school districts and must be removed from library bookshelves,” while “sexually relevant” materials can only be checked out with written parental consent. The Court held that the statute compels the placement of speech (the labeling) on the books, which the public is not likely to attribute to the government, and hence that the claim is not defeated by the government-speech doctrine.

Unpublished

  • U.S. v. Valdez-Pardo, 23-10436, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming 20-month sentence on conviction of illegal reentry.
  • U.S. v. Pacheco, 23-10669, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. McCoy-Taylor, 23-20340, appeal from S.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Barraza-Ramirez, 23-50567, appeal from W.D. Tex.
    • per curiam (Davis, Ho, Ramirez), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Abbott, 23-50632, appeal from W.D. Tex.
    • per curiam en banc Court, Rivers and Harbors Act
    • Ordering en banc rehearing of December 1, 2023, panel opinion by Judge Douglas affirming district court’s preliminary injunction against Texas’s construction of a floating barrier in the Rio Grande as a violation of the Rivers and Harbors Act.