Fifth Circuit again a disproportionate constituent of the Supreme Court’s docket

Posted on by tadbartlett

As of October 4, 2024, 9 of the 32 cases that the U.S. Supreme Court has granted certiorari for hearing in the October 2024 Term come out of the Fifth Circuit. That’s 28% of the Supreme Court’s docket this year, so far, even though the Fifth is only one of thirteen federal circuits (not to mention the various state high courts). Those cases are below, noting the date of the Fifth Circuit’s decision, the opinion breakdown of the panel, and the operative issues, including issues on gun control, agency power, free speech, constitutional criminal procedure, qualified immunity, and standing:

  • Garland v. VanDerStok (Nov. 9, 2023)
    • Engelhardt, J. (Willett, Engelhardt, Oldham), Oldham, J., concurring; firearms regulation, administrative law
    • Affirming in part and vacating in part district court’s summary judgment vacating Bureau of Alcohol, Tobacco, and Firearms’ Final Rule redefining “firearm” and “frame or receiver” for purposes of enforcement under the Gun Control Act to capture modern firearms such as the AR-15 and various semi-automatic handguns, as well as gun kits and “ghost guns,” on the basis that the ATF’s rule outstripped Congress’s dictates under the GCA. The plaintiffs challenged the Final Rule’s proposed definition of “frame or receiver ” to include incomplete frames or receivers and the proposed definition of “firearm” to include weapon parts kits.
  • Food and Drug Administration v. Wages and White Lion Investments, LLC (Jan. 3, 2024)
    • Granting petition for review of FDA marketing denial orders regarding flavored e-cigarettes, setting orders aside, and remanding to the FDA for reconsideration of the e-cigarette manufacturers’ premarket tobacco applications (“PMTAs”). The en banc majority held that the FDA’s denial of the petitioners’ PMTAs was arbitrary and capricious.
  • Free Speech Coalition v. Paxton (March 7, 2024)
    • Smith, J. (Higginbotham, Smith, Elrod), Higginbotham, J., dissenting in part; First Amendment, preemption
    • Vacating district court’s preliminary injunction of Texas’s requirement for pornography websites to have an age-verification requirement, affirming district court’s preliminary injunction of Texas’s requirement to place a health warning on such websites, and remanding for further proceedings.
    • The Court held that rational-basis review applied to the state’s requirements for pornographic websites (“that regulation of the distribution to minors of speech obscene for minors is subject only to rational-basis review … is good law and binds this court today”), and that “the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography.” The Court also held that the age-verification requirement was not preempted by § 230 of the federal Communications Decency Act.
    • The Court then held that, under the commercial-speech doctrine, the health-warnings requirement constituted unconstitutional compelled speech under National Institute of Family & Life Advocates v. Becerra (NIFLA), 585 U.S. 755, 766 (2018).
  • Duffey v. U.S. (Feb. 2, 2024) and Hewitt v. U.S. (consolidated)
    • Wilson, J. (Southwick, Engelhardt, Wilson), criminal, First Step Act, habeas corpus
    • Affirming denial of sentence reduction under the First Step Act in defendants’ successive § 2255 petition.
    • The Court held that § 403 of the First Step Act was not applicable to reduce the mandatory minimum sentence where the initial sentence had been imposed prior to the enactment of the First Step Act, though the resentencing after vacatur and remand of the initial sentence occurred after the effective date of the Act. The Court held that, under the plain language of the statute, the initial sentence was a sentence that had been “imposed,” even if it was subsequently vacated and subject to a remand for resentencing. “If Congress meant for the First Step Act’s retroactivity bar to apply only to valid sentences, it could easily have said so.”
  • Food and Drug Administration v. R.J. Reynolds Vapor Co. (March 23, 2023)
    • Jones, J. (King, Jones, Smith), Administrative Procedure Act
    • Granting stay of FDA’s order denying premarket tobacco product application (“PMTA”) for menthol-flavored e-cigarettes. At issue at the U.S. Supreme Court is whether a manufacturer may file a petition for review in a circuit (other than the U.S. Court of Appeals for the District of Columbia Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer’s products that is located within that circuit.
  • Nuclear Regulatory Commission v. Texas (Aug. 25, 2023; en banc denied March 14, 2024)
    • Ho, J. (Jones, Ho, Wilson), administrative law, standing
    • Granting petition for review of NRC order, and vacating license for temporary storage for spent nuclear fuel, holding that the NRC does not have authority under the Atomic Energy Act to license temporary nuclear waste storage facilities. The Court also held that the petitioners did not waive constitutional standing by providing only a general jurisdictional statement, as they reasonably believed standing to be self-evident on the record. “From the earliest stages of this proceeding, the Commission has challenged jurisdiction on statutory standing grounds only. It twice moved to dismiss, but neither motion challenged constitutional standing. Accordingly, Petitioners could reasonably assume it was self-evident.”
    • In a dissent from the denial of rehearing en banc, Judge Higginson noted that the Court’s holding on standing had created a circuit-split.
  • Barnes v. Felix (Jan. 23, 2024)
    • Higginbotham, J. (Higginbotham, Smith, Elrod), Higginbotham, J., concurring; excessive force, qualified immunity
    • Affirming summary judgment finding no constitutional violation under the moment of threat doctrine in plaintiffs’ claims arising from fatal shooting during a traffic stop. Judge Higginbotham concurred in his own majority opinion, to decry the Circuit’s precedent on the moment of threat doctrine: “A routine traffic stop has again ended in the death of an unarmed black man, and again we cloak a police officer with qualified immunity, shielding his liability. … To these eyes, blinding an officer’s role in bringing about the ‘threat’ precipitating the use of deadly force lessens the Fourth Amendment’s protection of the American public, devalues human life, and frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.” (Internal quotation marks and citation omitted).
  • Guttierez v. Saenz (Feb. 8, 2024)
    • Southwick, J. (Southwick, Haynes, Higginson), Higginson, J., dissenting, sec. 1983, standing
    • On holding that plaintiff lacked standing, vacating district court’s judgment that plaintiff–incarcerated capital inmate–had shown that a provision of Texas’s DNA testing statute was unconstitutional and that he was entitled to DNA testing, and remanding for dismissal of action for lack of jurisdiction.