Take the Fifth

Designated for publication

• Vota v. Ogg, 22-50732, appeal from W.D. Tex.
  • Southwick, J. (Richman, Southwick, Oldham), election law, sovereign immunity
  • Reversing district court’s denial of District Attorney’s motion to dismiss constitutional claims of voters and others challenging recent amendments to Texas election laws, holding that District Attorney is entitled to sovereign immunity; vacating denial of motion to dismiss for lack of standing; and remanding to district court to for further proceedings on Voting Rights Act, Rehabilitation Act, and ADA claims.
  • The Court held that it had jurisdiction to review the denial of the motion to dismiss the constitutional claims under the collateral order doctrine. “A federal court exercising jurisdiction over a claim to which a State is immune, even if other, non-immune claims exist, at least increases the coercive process exercised by the federal court.”
  • The Court held that, for purposes of the Ex parte Young exception to sovereign immunity, the District Attorney was not the proper defendant for the plaintiffs’ constitutional challenge. The Court noted that the District Attorney’s authority to enforce the election laws was not a duty to enforce necessary to trigger Ex parte Young, but was merely a discretionary authority.
  • The Court then declined to exercise pendent appellate jurisdiction to review the issue of the plaintiffs’ standing to pursue their statutory claims.

• BNSF Railway Co. v. Federal Railroad Administration, 22-60217, petition for review of Federal Railroad Administration order
  • Smith, J. (Jones, Smith, Graves); Graves, J., dissenting in part; administrative law
  • Granting petition for review of FRA’s denial of BNSF’s request for an expanded waiver from the use of automated track inspection, holding that the denial was arbitrary and capricious and reversing the FRA’s order.
  • Judge Graves dissented in part. While he agreed that the denial was arbitrary and capricious, “I cannot sign on to the majority’s alternative conclusion, however, that because the FRA granted some of BNSF’s prior waiver petitions, it was obligated to grant another.” He also would find remand to be more appropriate than a full reversal.

• Braidwood Management, Inc. v. Becerra, 23-10326, appeal from N.D. Tex.
  • Willett, J. (Willett, Wilson, Ramirez), Affordable Care Act
  • Affirming in part, reversing in part, and remanding, on review of injunctive relief granted to plaintiffs challenging on religious grounds mandates for coverage of certain preventive treatments under the ACA, including contraception, HPV vaccines, and preventive measures for HIV.
  • The Court summarized the issues and their disposition:
    • “The Affordable Care Act requires private insurers to cover certain kinds of ‘preventive care,’ including contraception, HPV vaccines, and drugs preventing the transmission of HIV. The plaintiffs are a group of individuals and businesses who have religious objections to these preventive care mandates and challenged them on multiple grounds. They contend, among other things, that the preventive-care mandates are unlawful because the agencies that issued them violate Article II of the Constitution, insofar as their members are principal officers of the United States who have not been validly appointed under the Appointments Clause. In a series of summary judgment rulings, the district court mostly agreed, vacating all agency actions taken to enforce the mandates under the Administrative Procedure Act and issuing both party-specific and universal injunctive relief.
    • “Our decision today is something of a mixed bag. With respect to one of the challenged administrative bodies, the United States Preventive Services Task Force, we agree that the unreviewable power it wields—the power to issue preventive-care recommendations that insurers must cover by law—renders its members principal officers of the United States who have not been validly appointed under Article II of the United States Constitution. And because Xavier Becerra, in his capacity as the Secretary of the Department of Health and Human Services, has not validly cured the Task Force’s constitutional problems, the district court properly enjoined the defendants from enforcing the preventive-care mandates to the extent they came at the recommendation of the Task Force. We think it was error, however, for the district court to have also vacated all agency actions taken to enforce the preventive-care mandates and to universally enjoin the defendants from enforcing them.
    • “With respect to the plaintiffs’ cross-appeal and their Appointments Clause challenges against the other two administrative bodies at issue in this case, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration, we agree with the Government that Secretary Becerra has the authority to ratify their recommendations and guidelines, but we reserve judgment on whether he has effectively done so. The district court had no opportunity to consider the plaintiffs’ arguments that the Secretary’s ratification memo suffers from multiple defects under the Administrative Procedure Act, and we decline to consider these arguments in the first instance.”

• Paxton v. Dettelbach, 23-10802, appeal from N.D. Tex.
  • Clement, J. (Jones, Clement, Wilson), standing
  • Affirming dismissal for lack of standing of suit by State of Texas and three individuals to enjoin federal regulations regarding possession of silencers for personal use.
  • As to the individual plaintiffs, the Court noted that their declarations only established that they sought to manufacture a silencer, but that the challenged regulations did not prohibit such manufacture but only required certain fees and registration requirements.
  • “Next, we address Texas’s two asserted bases for standing: its ‘quasi-sovereign interests in its citizens’ health and well-being,’ and ‘its sovereign interest in the power to create and enforce a legal code.’ Neither is valid.”

• Hall v. Trochessett, 23-40362, appeal from S.D. Tex.
  • Doughty, J. (Jones, Douglas, Doughty, by designation), sec. 1983
  • Affirming dismissal of plaintiff’s sec. 1983 claim arising from arrest for interference with police duties when he had instructed his wife not to provide information to a police officer investigating a hit and run.
  • The Court held that, because the arrest warrant had been issued by a magistrate, “The district court properly found that probable cause existed in this matter pursuant to the independent intermediary doctrine.”

• Sugg v. Midwestern University, 23-40425, appeal from S.D. Tex.
  • Wiener, J. (Smith, Wiener, Douglas), breach of contract, fraud
  • Affirming dismissal of plaintiff’s breach of contract and fraud claims arising from her dismissal from a nursing program after she had failed several required courses.

• Appliance Liquidation Outlet, L.L.C. v. Axis Supply Corp., 23-50413, appeal from W.D. Tex.
  • Smith, J. (Smith, Haynes, Douglas); Haynes, J., dissenting in part; trademark infringement
  • Affirming the district court’s judgment finding violation of one mark, reversing judgment as to a second mark, and vacating attorneys’ fee award as an abuse of discretion.
  • Judge Haynes dissented in part. She would have affirmed the award of attorneys’ fees.

Unpublished

• Premier Electronics, L.L.C. v. ADT, L.L.C., 23-10715, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Higginson), commercial
  • Affirming summary judgment in favor of defendant.

• U.S. v. Johunkin, 23-10926, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Goodwin, 23-20455, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
  • Dismissing appeal of 324-month sentence on conviction of conspiracy to advertise child pornography, pursuant to appeal-waiver in guilty plea.

• Durrani v. GuideOne National Insurance Co., 23-20485, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Higginson), employment discrimination
  • Affirming summary judgment dismissal of plaintiff’s age discrimination claims.

• U.S. v. Steward, 23-20515, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Tran, 23-30487, appeal from E.D. La.
  • per curiam (Smith, Higginson, Engelhardt), criminal, guilty plea
  • Affirming district court’s denial of motion to withdraw guilty plea.

• U.S. v. Espinosa, 23-40071, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Sears, 23-40135, appeal from E.D. Tex.
  • per curiam (Elrod, Willett, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Farshid v. Allen Independent School District, 23-40532, appeal from E.D. Tex.
  • per curiam (Dennis, Willett, Duncan), sec. 1983
  • Affirming dismissal of sec. 1983 claims arising from school personnel’s injuring of student.

• U.S. v. Villarreal, 23-50505, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Loera, 23-50846, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Galaviz-Lopez, 23-50091, c/w 23-50095, appeal from W.D. Tex.
  • per curiam (Jolly, Engelhardt, Douglas), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.