Take the Fifth

Designated for publication

• Consumers’ Research v. Consumer Product Safety Commission, 22-40328, appeal from E.D. Tex.
  • per curiam (voting against en banc rehearing: Richman, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Douglas, Ramirez; voting for en banc rehearing: Jones, Smith, Elrod, Ho, Duncan, Engelhardt, Oldham, Wilson); Willett, J., concurring in denial of en banc rehearing; Ho, J., dissenting from denial of en banc rehearing; Oldham, J., dissenting from denial of en banc rehearing (joined by Jones, Smith, Elrod, Ho, Duncan, Engelhardt, Wilson, JJ.); administrative law, standing, appellate jurisdiction
  • Denying en banc rehearing of panel decision (Willett, Dennis, JJ.; Jones, J., dissenting) 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.
  • Judge Willett, the original panel author, concurred in the denial of en banc rehearing. Explicating the horizontal and vertical distributions of power in our constitutional system, he opined, “[O]ur paramount loyalty is to the Constitution—more precisely, to the Constitution as the Supreme Court interprets it. The New Deal-era precedent that lets Congress restrict the President’s ability to remove members of multiheaded agencies, what we now shorthand as Humphrey’s Executor, to overrule it, going out of its way to declare—recently and conspicuously—that it would ‘not revisit’ the decision but leave it ‘in place.’ I believe we must follow suit, even if we think Humphrey’s Executor was wrongly decided as an original matter and even if we think it is ‘out of step with prevailing Supreme Court sentiment.’ That vertical limitation on our judicial power, compelled by the structure of Article III and the doctrine of stare decisis, means we are not at liberty to get ahead of our skis and precipitately shrink a Supreme Court decision’s precedential scope is still on the books.” (Footnotes omitted).
  • Judge Ho dissented from the denial of en banc rehearing. Quoting from one of his own cocurring opinions, he wrote, “Under current statutory law, ‘[o]nly a tiny percentage of Executive Branch employees are subject to Presidential removal. The overwhelming majority of federal employees, by contrast, are protected against Presidential removal by civil service laws.’ Feds for Med. Freedom v. Biden, 63 F.4th 366, 390 (5th Cir. 2023) (en banc) (Ho, J., concurring). So ‘the President actually controls surprisingly little of the Executive Branch.’ Id. ‘[W]e should consider whether laws that limit the President’s power to remove Executive Branch employees are consistent with the vesting of executive power exclusively in the President.’ Id. at 391. There is no accountability to the people when so much of our government is so deeply insulated from those we elect. Restoring our democracy requires regaining control of the bureaucracy.”
  • Judge Oldham authored the principal dissent from the denial of en banc rehearing. “The panel majority was doubtless correct that inferior courts must follow binding Supreme Court precedent. But that truism accomplishes little because all agree that we’re bound by Humphrey’s Executor, Myers, Seila Law, &c. The dispute is how those binding authorities apply to this case. In my view, the Court’s precedents say the President has unrestrictable power to remove principal officers unless those officers are part of a traditional multimember expert agency that does not wield substantial executive power. That means the Commission’s removal protections are unconstitutional. And even if I am wrong—even if the Court’s precedents mean what the panel majority said they mean—the Commission’s removal protections are still unconstitutional because the Commission is not ‘traditional.’ I respectfully dissent from our court’s refusal to reconsider these questions en banc.”

• Bustamante-Leiva v. Garland, 22-60479, petition for review of BIA order
  • Elrod, J. (Higginbotham, Smith, Elrod), immigration
  • Denying Honduran citizens’ petition for review of BIA order denying their applications for asylum, statutory withholding of removal under 8 U.S.C. § 1231(b)(3), and protection of removal under the Convention Against Torture.

• Diamond Services Corp. v. Curtin Maritime Corp., 23-20118, appeal from S.D. Tex.
  • Duncan, J. (Richman, Haynes, Duncan), administrative law
  • Affirming judgment holding that Coast Guard’s determination that dredge vessel could be deemed “built in the United States” even though it incorporated components not built in the United States was not arbitrary and capricious, giving deference to the Coast Guard’s interpretation of its own regulations.

• Avion Funding, L.L.C. v. GFS Industries, L.L.C., 23-50237, appeal from W.D. Tex.
  • Duncan, J. (Higginbotham, Higginson, Duncan), bankruptcy
  • Reversing bankruptcy court’s judgment that Small Business Reorganization Act’s dischargeability provisions only applied to individual debtors and not to business entities, and remanding for further proceedings. “Although the question is complicated by a certain textual awkwardness in the Bankruptcy Code, we ultimately side with the Fourth Circuit and rule that, in Subchapter V proceedings, both corporate and individual debtors are subject to the list of § 523(a) discharge exceptions.”

• Book People, Inc. v. Wong, 23-50668, appeal from W.D. Tex.
  • per curiam (voting against en banc rehearing: Stewart, Southwick, Haynes, Graves, Higginson, Willet, Wilson, Douglas, Ramirez; voting for en banc rehearing: Richman, Jones, Smith, Elrod, Ho, Duncan, Engelhardt, Oldham); Ho, J., dissenting from denial of en banc rehearing (joined by Jones, Smith, Duncan, Engelhardt); First Amendment, standing, ripeness, sovereign immunity
  • Denying en banc rehearing of panel opinion that affirmed 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, vacated injunction as to chair of the Texas State Library and Archives Commission and as to chair of the Texas State Board of Education, and remanded for further proceedings.
  • Judge Ho dissented from the denial of en banc rehearing. As to this Texas law requiring book vendors who wish to do business with Texas schools to label their books with certain designations regarding sexual content and whether this labeling requirement is compelled speech in violation of the First Amendment, Judge Ho would hold, “In short: The business can decline to respond, and the consumer can decline to purchase. That’s not compelled speech—that’s consumer speech.”

• In re Space Exploration Technologies, Inc., 24-40103, petition for writ of mandamus to S.D. Tex.
  • per curiam (voting against en banc rehearing: Stewart, Southwick, Haynes, Graves, Higginson, Wilson, Douglas, Ramirez; voting for en banc rehearing: Richman, Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham; Judge Ho not participating in en banc poll); Jones, Smith, Elrod, Duncan, Engelhardt, Oldham, JJ., jointly dissenting; mandamus, venue
  • On an 8-8 vote with Judge Ho not participating, denying en banc rehearing of panel opinion denying petition for writ of mandamus seeking to keep lawsuit SpaceX filed against the National Labor Relations Board in the Southern District of Texas rather than transferring venue to the Central District of California.
  • Judges Jones, Smith, Elrod, Duncan, Engelhardt, and Oldham issued a joint dissent (though using the pronoun “I”), restating Judge Elrod’s penal dissent and adding some of their own language.

Unpublished

• DIRTT Environmental Solutions, Inc. v. Falkbuilt, Inc., 22-10329, appeal from N.D. Tex.
  • per curiam (Clement, Southwick, Ho), venue
  • Affirming forum non conveniens dismissal of corporate governance and trade secret misappropriation claim.

• Rodriguez v. Safeco Insurance Co. of Indiana, 22-11070, appeal from N.D. Tex.
  • per curiam (Higginbotham, Graves, Douglas), insurance
  • Affirming ruling that insured was not entitled to additional attorneys’ fee award in insurance coverage case under Texas law.

• U.S. v. Johnson, 22-11104, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Ho), habeas corpus
  • Affirming denial of sec. 2255 petition.

• Treadway v. Otero, 22-40383, c/w 22-40403, appeal from S.D. Tex.
  • per curiam (Jones, Haynes, Douglas), employment, sanctions
  • Affirming judgment and sanctions award against defendants in claim brought under Trafficking Victims Protection Act.

• U.S. v. Massey, 23-10421, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Pruitt, 23-10441, appeal from N.D. Tex.
  • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
  • Affirming 168-month sentence on conviction of possession of prepubescent child pornography.

• U.S. v. Garvin, 23-10584, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, guilty plea
  • Affirming guilty plea conviction of conspiracy to possess with intent to distribute a controlled substance.

• Oklahoma Firefighters Pension and Retirement System v. Six Flags Entertainment Corp., 23-10696, appeal from N.D. Tex.
  • Haynes, J. (Wiener, Haynes, Higginson), securities fraud
  • Reversing judgment for defendant on the pleadings, denial of city’s motion to intervene, and denial of motion to amend class action complaint in securities fraud class action brought by firefighter pension fund against entertainment company based on investments in entertainment company brought in reliance on disclosures about company’s expansion plans.

• U.S. v. Reyna, 23-10788, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Fannin, 23-11100, appeal from N.D. Tex.
  • per curiam (Jolly, Engelhardt, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Dickson, 23-20084, appeal from S.D. Tex.
  • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
  • Affirming conviction and 157-month sentence for aiding and abetting interference with commerce by robbery, and brandishing and discharging a firearm during or in relation to a crime of violence.

• Smith v. BP Exploration and Production, Inc., 23-30552, appeal from E.D. La.
  • per curiam (Richman, Oldham, Ramirez), timeliness
  • Affirming dismissal of BP Deepwater Horizon claims as untimely.

• U.S. v. Davis, 23-30574, appeal from W.D. La.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming 120-month sentence on conviction of possession of a stolen firearm.

• U.S. v. Short, 23-30606, appeal from E.D. La.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Brock v. Walden University, L.L.C., 23-30689, appeal from W.D. La.
  • per curiam (Jolly, Engelhardt, Douglas), Title IX, appellate jurisdiction
  • Dismissing appeal of interlocutory orders in discrimination suit for lack of appellate jurisdiction.

• Burke v. GeoVera Insurance Co., 23-30773, appeal from E.D. La.
  • per curiam (Davis, Ho, Ramirez), insurance, res judicata
  • Affirming dismissal of insurance coverage claim as barred by res judicata.

• U.S. v. Amador-Baez, 23-40554, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Ellis v. Schneider National Carriers, Inc., 23-40611, appeal from S.D. Tex.
  • per curiam (Davis, Ho, Ramirez), Title VII, employment discrimination, Age Discrimination in Employment Act, Americans with Disabilities Act
  • Affirming dismissal of employment discrimination claims.

• U.S. v. Banuelas-Gutierrez, 23-50138, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Bailey, 23-50400, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Elrod), criminal, compassionate release
  • Vacating denial of motion for compassionate release, and remanding for further proceedings.

• U.S. v. Morales-Rojas, 23-50635, appeal from W.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming 60-month sentence on conviction for conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (B)(i), and transporting aliens within the United States for private financial gain.

• U.S. v. Lovings, 23-50653, c/w 23-50656, appeal from W.D. Tex.
  • per curiam (Higginson, Ho, Engelhardt), criminal
  • Affirming conviction and sentence for possession of a firearm by a felon.

• U.S. v. Castillo-Velasquez, 23-50793, c/w 23-50804, appeal from W.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry, and order of revocation of supervised release.

• U.S. v. Smith, 23-60457, appeal from N.D. Miss.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming 38-month sentence on conviction of possession of ammunition by a felon.

• M.D. v. Abbott, 24-40248, appeal from S.D. Tex.
  • per curiam (Elrod, Haynes, Douglas), contempt, stay
  • Temporarily staying contempt order and district court proceedings pending further order of court, and ordering expedited briefing.