Designated for publication
- U.S. v. Campos-Ayala, 21-50642, appeal from W.D. Tex.
- Smith, J. (joined by Jones, Stewart, Southwick, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Ramirez, JJ.); Haynes, J., concurring in judgment only; Richman, C.J., dissenting (joined by Elrod, Graves, Douglas, JJ.); criminal, sufficiency of evidence, Miranda rights, due process
- On en banc rehearing of panel opinion that had reversed on the basis of insufficient evidence, the Court instead affirmed the conviction of codefendants for possession with intent to distribute one hundred kilograms or more of marijuana.
- The Court examined in the evidence in the record and concluded that there was sufficient evidence to show that the co-defendants, who had crossed the border illegally and then been picked up by the car that would later be found to have marijuana in it, sufficiently “possessed” the marijuana with intent to distribute when they helped the driver move the bundles around to pack the car better.
- The Court held that there was no due process violation in the unavailability (due to deportation) of another passenger in the vehicle to provide testimony that corroborated their stories. The Court held that it was crucial that the removal of the other passenger, who had been traveling with her daughter, was in good faith, because there was no available immigrant beds that would have allowed the mother and daughter to be sheltered together. The Court found, also, that the testimony of the other passenger would have been merely cumulative, and that no due process violation thus occurred.
- The Court held that statements that the defendants made before they were Mirandized, while they were still sitting in the vehicle, did not need to be suppressed. “The initial command to remain in the car was a routine detention to investigate whether there was a crime, not custody or a formal arrest. And generally, Miranda warnings are not required when officers question occupants during a routine traffic stop. Bodycam video indicates that Agent Ramos was calm and respectful instead of threatening. Further, Campos was not placed into a patrol car, handcuffed, or removed from the scene before Ramos’s questioning.” (Internal citation omitted).
- Chief Judge Richman dissented. As to sufficiency of the evidence, she wrote, “Possession with intent to distribute cannot be inferred or presumed when the prosecution’s own evidence disproves intent to distribute.” As to the use of the un-Mirandized statements, she wrote, “[T]he district court admitted into evidence statements made by criminal defendants after they were restrained for forty minutes, surrounded by six officers, and interrogated without receiving warnings consistent with Miranda.” And as to the unavailability of the testimony from the other passenger, she wrote, “[T]hose same criminal defendants could not mount an effective defense because the government deported the sole available witness with first-hand knowledge of what transpired from the time the defendants illegally entered this country until they were arrested. The government deported the witness before providing the defendants the proper notice, meaning the defendants could not even depose her. Her testimony would have been material and helpful. It would have corroborated how the defendants came to be crammed into the vehicle on top of the marihuana.”
- Harrison v. Young, 23-10223, appeal from N.D. Tex.
- Clement, J. (Clement, Southwick, Ho); healthcare law, mootness
- Reversing in part and affirming in part district court’s summary judgment in favor of Texas Health and Human Services Commission on plaintiff’s challenge to denial of funding for medical services above the Texas law “Cost Cap” for Medicaid-funded intensive medical care services; holding that the plaintiff’s ADA claims were not mooted by the subsequent partial funding of the 24-hour care the plaintiff alleged she required, but that the dismissal of her due process claims was supported in the record.
- Disability Rights Texas v. Hollis, 23-20171, appeal from S.D. Tex.
- Stewart, J. (Stewart, Duncan, Engelhardt), healthcare law
- Affirming summary judgment in injunctive relief claim by plaintiff advocacy organization against Texas hospital for failure to release video footage pertaining to the treatment of a patient who had been involuntarily confined in the hospital’s psychiatric intensive care unit, finding that the injunctive relief was required under the Protection and Advocacy for Individuals with Mental Illness Act.
- S.K.A.V., LLC v. Independent Specialty Insurance Co., 23-30293, appeal from W.D. La.
- Willett, J. (Dennis, Willett, Duncan), insurance, arbitration
- Affirming denial of insurance company’s motion to compel arbitration of plaintiff hotel owner’s hurricane claim on it surplus lines policy, holding that La. R.S. § 22:868 reverse preempts the Federal Arbitration Act and that the broad arbitration clause in the surplus lines policy was unenforceable under that statute. “The statute, as relevant here, bars insurance policies from ousting Louisiana courts of jurisdiction and permits, in limited circumstances, forum- and venue-selection provisions.”
- Asante-Chioke v. Dowdle, 23-30694, appeal from E.D. La.
- Engelhardt, J. (King, Ho, Engelhardt), qualified immunity
- Vacating district court’s order denying law enforcement defendants’ motion for limited discovery on qualified immunity issues.
- The Court held first that it had jurisdiction over the discovery order under the collateral order doctrine where the order was tantamount to an order denying qualified immunity relief.
- Little v. Llano County, 23-50224, appeal from W.D. Tex.
- Wiener, J. (Wiener, Southwick, Duncan); Southwick, J., concurring in judgment in part; Duncan, J., dissenting; First Amendment
- Affirming preliminary injunction ordering library to return seventeen books to the library’s shelves, modifying the injunction to ensure its proper scope.
- The library had removed seventeen books, loosely grouped as follows:
- Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun;
- Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces;
- Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria;
- Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States;
- Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and
- It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.
- The Court reviewed relevant First Amendment decisions and “glean[ed] the following rules. Librarians may consider books’ contents in making curation decisions. Their discretion, however, must be balanced against patrons’ First Amendment rights. One of these rights is the right to receive information and ideas. This right is violated when an official who removes a book is substantially motivated by the desire to deny access to ideas with which [they] disagree[]. To be sure, content is necessarily relevant in removal decisions. But a book may not be removed for the sole—or a substantial— reason that the decisionmaker does not wish patrons to be able to access the book’s viewpoint or message.” (Internal quotation marks and citations omitted). The Court rejected any attempt to distinguish precedents on the basis that they were formed in the school library context while the instant case was a general public library context: “But if the principles enshrined in Pico and Campbell apply in the education context, in which particular free speech principles are restricted because of school officials’ need to control the curriculum and school environment, then they apply with even greater force outside of the education context, where no such limitations exist.”
- The Court held that, under this standard, the evidence in the record supported the district court’s finding that the library pulled the seventeen books specifically because a group of patrons had labeled them as “pornographic filth.”
- The Court then modified the preliminary injunction language to specifically only require the return of the seventeen books at issue, and to remove language that prevented the library from removing “any books for any reason” during the pendency of the lawsuit. “There are still entirely valid and constitutional reasons to remove books from the library’s shelves, such as when a patron severely damages a book. The injunction, then, is not narrowly tailored to remedy the injury of which Plaintiffs complain.”
- Finally, the Court took issue with the dissent’s rhetorical flourish: “The dissent accuses us of becoming the ‘Library Police,’ citing a story by author Stephen King. But King, a well-known free speech activist, would surely be horrified to see how his words are being twisted in service of censorship. Per King: ‘As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.’ Defendants and their highlighters are the true library police.”
- Judge Southwick concurred in the judgment in part. He concurred in the majority opinion’s articulation of the applicable standard, but disagreed as to “some of the law’s application.” He would find that some of the removals of books in this case satisfied the standard. He would find that the “butt and fart” books did not express a viewpoint such that their removal could be ascribed to disagreement with a viewpoint.
- Judge Duncan dissented. “The commission hanging in my office says ‘Judge,’ not ‘Librarian.’ Imagine my surprise, then, to learn that my two esteemed colleagues have appointed themselves co-chairs of every public library board across the Fifth Circuit. In that new role, they have issued ‘rules’ for when librarians can remove books from the shelves and when they cannot. While I do not doubt my colleagues’ good intentions, these ‘rules’ are a disaster. They lack any basis in law or common sense. And applying them will be a nightmare.” He would hold that the library’s actions in choosing what books to retain and which to remove should be protected government speech.
- National Association of Private Fund Managers v. Securities and Exchange Commission, 23-60471, petition for review of SEC order
- Engelhardt, J. (Southwick, Engelhardt, Wilson), administrative law, securities law
- Vacating a final rule by the SEC adopted “to enhance the regulation of private fund advisers, designed to protect investors who invest in private funds and to prevent fraud, deception, or manipulation by the investment advisers to those funds.”
- The Court first held that the plaintiff had associational standing, and that the Fifth Circuit was a proper venue for the challenge. The Court then held that the new rule exceeded the SEC’s statutory authority under the Advisers Act because private funds are not within the ambit of the Act’s provisions regarding funds that serve retail customers and that the Dodd-Frank Act did not expand this authority.
- Mid Valley Pipeline Co. v. Rodgers, 23-60536, appeal from N.D. Miss.
- Wilson, J. (Clement, Engelhardt, Wilson), Contract Clause
- Affirming summary judgment dismissal of plaintiff’s claim, on the basis that the permit at issue was not a contract within the Contract Clause of the U.S. Constitution.
Unpublished
- Henning Management, L.L.C. v. Chevron USA, Inc., 22-30761, appeal from W.D. La.
- per curiam (Richman, Jones, Ho), environmental law
- Reversing district court’s injunction to require Chevron to participate in agency proceeding to determine remediation plan for contaminated property, holding that Louisiana’s “Act 312” allowed an oilfield operator to enter a limited admission merely to evaluate potential contamination.
- Thomas v. Dallas Independent School District, 23-10882, appeal from N.D. Tex.
- Higginson, J. (Higginbotham, Stewart, Higginson), Age Discrimination in Employment Act
- Affirming in part and vacating in part plaintiff’s age discrimination claims, and remanding for further proceedings.
- U.S. v. Sanders, 23-11074, appeal from N.D. Tex.
- per curiam (Smith, Higginson, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Ward, 23-11264, appeal from N.D. Tex.
- per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- Dyer v. Capital One National Association, 23-20298, appeal from S.D. Tex.
- per curiam (Dennis, Wilson, Ramirez), deceptive trade practices, banking law
- Affirming dismissal of plaintiff’s claims arising from bank’s closure of her accounts.
- U.S. v. Williams, 23-20466, appeal from S.D. Tex.
- per curiam (Wiener, Stewart, Douglas), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Yoon v. Garg, 23-20519, appeal from S.D. Tex.
- per curiam (Clement, Engelhardt, Wilson), due process
- Affirming denial of preliminary injunction on plaintiff’s claims of employment-related denial of due process for disciplinary actions taken on allegations that plaintiff had falsified an image in a published journal article, finding a lack of a constitutionally protected property interest.
- U.S. v. Mejia-Puente, 23-20562, appeal from S.D. Tex.
- per curiam (Smith, Higginson, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Payne, 23-20579, appeal from S.D. Tex.
- per curiam (Jones, Southwick, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Salazar-Salazar, 23-20587, appeal from S.D. Tex.
- per curiam (Jones, Southwick, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Lafleur, 23-30311, appeal from W.D. La.
- per curiam (Southwick, Haynes, Graves), criminal, sentencing
- Affirming 78-month sentence on conviction of possession of prepubescent
child pornography.
- Bell v. State Prison Officials, 23-30339, appeal from W.D. La.
- per curiam (Dennis, Willett, Duncan), Dennis, J., dissenting in part; prisoner suit
- Affirming dismissal of Louisiana state prisoner’s lawsuit.
- Judge Dennis dissented in part, as he would have reversed the dismissal of the plaintiff’s ADA claims.
- Horton v. Willis-Knighton Medical Center, 23-30653, appeal from W.D. La.
- per curiam (Dennis, Willett, Duncan), federal officer jurisdiction
- Affirming remand of case back to state court on rejection of federal officer removal jurisdiction in case brought against healthcare system that use of Meta-Pixel software resulted in the unauthorized sharing of private medical information.
- McClenny Moseley & Associates v. Equal Access Justice Fund, L.P., 23-30670, c/w 23-30692, appeal from W.D. La.
- Douglas, J. (Smith, Wiener, Douglas), attorney discipline
- Vacating discipline order that, after all of law firm’s attorneys had been suspended, sua sponte additionally sanctioned the law firm by prohibiting the firm, its attorneys, related parties, and clients from collecting attorneys’ fees in any pending litigation and holding that the firm and its related parties had no property or ownership interest in any proceeds that the firm would have potentially been entitled to; and remanding for further proceedings with regard to the law firm and with regard to its litigation funder.
- Cavalier v. Jill L. Craft Attorney at Law, L.L.C., 23-30778, appeal from M.D. La.
- per curiam (Dennis, Willett, Duncan), settlement agreement
- Affirming district court’s refusal to reconsider enforcement of a settlement agreement.
- U.S. v. Mondragon, 23-40496, appeal from S.D. Tex.
- per curiam (King, Haynes, Graves), criminal, sentencing
- Affirming conviction and sentence for conspiracy to transport illegal aliens within the United States and transporting an illegal alien within the United States.
- U.S. v. Longoria, 23-40534, appeal from S.D. Tex.
- per curiam (King, Haynes, Graves), criminal, sentencing
- Affirming sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine.
- Sanchez v. Dolgencorp of Texas, Inc., 23-40536, appeal from S.D. Tex.
- per curiam (Clement, Engelhardt, Wilson), personal tort
- Affirming summary judgment in favor of defendant in premises liability claim.
- U.S. v. Maldonado, 23-40630, appeal from S.D. Tex.
- per curiam (King, Haynes, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Vasquez-Calix, 23-40635, appeal from S.D. Tex.
- per curiam (Jones, Southwick, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Baeza-Cruz, 23-40679, appeal from S.D. Tex.
- per curiam (Smith, Higginson, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Martinez-Banegas, 23-50318, appeal from W.D. Tex.
- per curiam (Wiener, Stewart, Douglas), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Bernal, 23-50552, appeal from W.D. Tex.
- per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
- Affirming 96-month sentence on conviction of aiding and abetting the possession with intent to distribute more than 100 kilograms of marihuana.
- Adimora-Nweke v. McGraw, 23-50744, appeal from W.D. Tex.
- per curiam (Barksdale, Southwick, Graves), § 1983
- Dismissing as frivolous dismissal of pro se complaint on absolute governmental immunity grounds.
- U.S. v. Ramos-Palomino, 23-50831, appeal from W.D. Tex.
- per curiam (Wiener, Stewart, Douglas), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Alves v. Garland, 23-60467, petition for review of BIA order
- per curiam (Dennis, Willett, Duncan), immigration
- Denying Brazilian citizen’s petition to review BIA order denying appeal of IJ’s decision denying motion to reopen removal proceedings.
- Bridgeman v. SBC Internet Services, Inc., 23-60515, appeal from S.D. Miss.
- per curiam (Southwick, Haynes, Graves), employment, timeliness
- Affirming dismissal of claims for bad faith failure of employer to pay benefits, as barred by the statute of limitations.
- Pech v. Central Intelligence Agency, 24-50156, appeal from W.D. Tex.
- per curiam (King, Haynes, Graves), service of process
- Affirming dismissal of suit for failure to provide the necessary summons to the defendant.
- U.S. v. Jordan, 24-60167, appeal from S.D. Miss.
- per curiam (Smith, Higginson, Engelhardt), pretrial detention
- Affirming order of pretrial detention.
Take the Fifth 