September 25-27, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Devillier v. Texas, 21-40750, appeal from S.D. Tex.
    • per curiam (Higginbotham, Southwick, Higginson), taking, federal question jurisdiction
    • On remand from the U.S. Supreme Court, remanding to district court with instructions to remand to state court the plaintiffs’ taking claims against Texas.
  • Hines v. Pardue, 23-40483, appeal from S.D. Tex.
    • Willett, J. (Willett, Wilson, Ramirez), Ramirez, J., concurring; First Amendment
    • Reversing summary judgment in favor of the State of Texas, and remanding to district court with instructions to enter judgment in favor of plaintiff, on plaintiff retired veterinarian’s First Amendment challenge to Texas’s law disallowing telehealth in the veterinary space without an initial in-person examination. Texas had imposed criminal penalties on the plaintiff for returning emails to pet-owners who had sought his expertise. The Court held “that the State of Texas is directly regulating Dr. Hines’s speech and that this regulation fails to survive even intermediate scrutiny.”
    • Judge Ramirez concurred. She would have held that the physical examination requirement, as applied to the plaintiff, was a content-based speech restriction subject to strict scrutiny (while the majority did not determine whether it was content-based or content-neutral, upon finding that, regardless, it would not survive the less-restrictive intermediate scrutiny).
  • U.S. v. Ritchey, 23-60468, appeal from S.D. Miss.
    • Duncan, J. (Southwick, Duncan, Kernodle, by designation), criminal, sentencing
    • Vacating 60-month sentence on conviction of conspiracy to defraud the U.S. related to overcharges of the VA for pandemic medical supplies, on holding that the estimate of the fair market value for masks and other items used in the calculation of the amount of fraud for sentencing purposes was based on economically unrealistic benchmarks; and remanding for resentencing.
  • Winder v. Gallardo, 24-10017, appeal from N.D. Tex.
    • per curiam (Jones, Willett, Engelhardt), Americans with Disabilities Act, municipal liability, qualified immunity
    • Affirming dismissal of claims arising from fatal police shooting of plaintiff’s husband, who was suicidal, armed, and not responding to responding officer’s instructions to put his gun down.
    • The Court declined, first, the appellant’s invitation to upend qualified immunity altogether, noting that it did not, as a panel, have that authority.
    • The Court held that the exigent circumstances doctrine rendered objectively reasonable the responding officer’s warrantless entry into the house where the plaintiff’s husband was. “Suicidality presents a tragically common example of exigent circumstances.”
    • The Court held, as to the excessive force claim, that it was objectively reasonable for the responding officer to believe that the plaintiff’s husband was holding a gun and that deadly force was justified.
    • The Court also held that there was no basis for supervisory liability or municipal liability, because there was no underlying clear constitutional violation.
    • As to the plaintiff’s ADA claims arising from her husband’s mental illness, the Court held that its finding of exigent circumstances foreclosed ADA relief.

Unpublished

  • Feds for Medical Freedom v. Biden, 22-40043, appeal from S.D. Tex.
    • per curiam (Richman, Jones, Smith, Barksdale, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson); mootness, COVID-19, en banc
    • On remand from the U.S. Supreme Court vacating the en banc Court’s affirmance of a nationwide preliminary injunction of a vaccine mandate for federal employees, remanding to the district court with instructions to vacate the preliminary injunction as moot.
  • Rafuse v. Advanced Concepts and Technologies, International, L.L.C., 22-51126, appeal from W.D. Tex.
    • per curiam (Davis, Engelhardt, Oldham), Davis, J., concurring in judgment only on counterclaim, without opinion; contractual indemnity
    • Affirming 12(b)(6) dismissal of plaintiff’s contractual indemnity claims; vacating dismissal of defendant’s contractual indemnity counterclaim; and remanding for further proceedings.
  • U.S. v. Cortazar, 23-11218, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cooper, 23-40634, appeal from S.D. Tex.
    • per curiam (Elrod, Haynes, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Dominique, 23-50620, appeal from W.D. Tex.
    • per curiam (Barksdale, Haynes, Wilson), criminal, sentencing
    • Vacating in part and remanding for conformance of the special conditions of supervised release in the written judgment to those in the orally pronounced sentence.
  • Andrews v. Adams, 23-50841, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), § 1983
    • Affirming dismissal of plaintiff’s claims against all members of Congress for abandoning the gold standard and other claims.
  • U.S. v. Vazquez, 24-10012, appeal from N.D. Tex.
    • per curiam (Wiener, Ho, Ramirez), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Bell, 24-10090, appeal from N.D. Tex.
    • per curiam (Elrod, Haynes, Duncan), criminal
    • Affirming conviction of being a felon in possession of a firearm.
  • U.S. v. Bustos, 24-10202, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Powers, 24-10252, appeal from N.D. Tex.
    • per curiam (Wiener, Ho, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Martinez, 24-10349, appeal from N.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal, sentence reduction
    • Affirming denial of motion for sentence reduction.
  • U.S. v. Spezzia, 24-20041, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal, sentencing
    • Affirming imposition of special condition on supervised release barring defendant from knowingly purchasing, possessing, distributing, administering, or using any psychoactive substances that impair a person’s physical or mental functioning without the prior approval of the probation officer.
  • Bakari v. Filamar Transport, L.L.C., 24-20114, appeal from S.D. Tex.
    • per curiam (Jolly, Jones, Willett), employment discrimination
    • Dismissing as frivolous plaintiff’s appeal from dismissal of employment discrimination claims.
  • U.S. v. Greer, 24-30078, appeal from E.D. La.
    • per curiam (Wiener, Ho, Ramirez), criminal
    • Affirming revocation of supervised release.
  • U.S. v. Moore, 24-30161, appeal from W.D. La.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Diaz-Nunez, 24-50177, appeal from W.D. La.
    • per curiam (Jones, Dennis, Southwick), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. Rodriguez, 24-50331, appeal from W.D. Tex.
    • per curiam (Smith, Graves, Engelhardt), criminal, sentence reduction
    • Vacating denial of motion for sentence reduction, and remanding for further proceedings.
  • Portillo-Janders v. Garland, 24-60054, petition for review of BIA order
    • per curiam (Jolly, Jones, Willett), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order upholding the denial of asylum, withholding of removal, and protection under the Convention Against Torture.
  • Amaya v. Garland, 24-60092, petition for review of BIA order
    • per curiam (Smith, Stewart, Duncan), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal of the denial by an immigration judge (“I.J.”) of her application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Santiago-Garcia, 24-60157, appeal from S.D. Miss.
    • per curiam (Jones, Willett, Wilson), criminal, sentencing
    • Dismissing under the guilty plea appeal-waiver the defendant’s appeal of the sentence imposed on conviction of illegal reentry.
  • Okorie v. First Bank, 24-60273, appeal from S.D. Miss.
    • per curiam (Jolly, Graves, Oldham), bankruptcy
    • Dismissing appeal from interlocutory bankruptcy court orders.