November 12-14, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Devillier v. Texas, 21-40750, appeal from S.D. Tex.
    • per curiam (Higginbotham, Southwick, Higginson), Higginbotham, J., concurring; taking
    • On remand from the U.S. Supreme Court, withdrawing previous order remanding to the district court with instructions to return litigation to the state court and instead remanding to the district court to decide whether to return the litigation to state court.
    • Judge Higginbotham concurred, as he would keep the previous instructions to send back to state court. “It is now settled that in providing rights of action for takings by the state, Texas is discharging its obligations under the Fifth Amendment and the state removal is now without jurisdictional legs to stand on. … As Justice Thomas observed, it is undisputed that state court judges are ‘bound by obligations imposed by the Constitution.’ I am confident that our able district court will heed his observation—made for a unanimous court—and send these travelers on the Supreme Court’s predicate pathway, mindful that federal law is state law.”
  • Olivier v. City of Brandon, 22-60566, appeal from S.D. Miss.
    • per curiam (voting for rehearing: Elrod, Jones, Smith, Richman, Willett, Ho, Duncan, Oldham; voting against rehearing: Stewart, Southwick, Haynes, Graves, Higginson, Engelhardt, Wilson, Douglas, Ramirez), § 1983, en banc
    • Denying rehearing en banc of August 25, 2023, unpublished panel opinion (Wiener, Graves, Douglas) affirming district court’s judgment that Heck barred plaintiff’s § 1983 claims.
    • Judge Richman dissented from the denial of en banc rehearing, emphasizing that the issue of the Heck bar did not address other preclusive doctrines.
    • Judge Ho dissented from the denial of rehearing, joined by Chief Judge Elrod and Judges Smith, Willett, Duncan, and Oldham. He would hold that it is an incorrect reading of Heck to bar the plaintiff from challenging the constitutionality of the city’s ordinance where he had previously been convicted under that ordinance.
    • Judge Oldham dissented, joined by Chief Judge Elrod and Judges Jones, Smith, Richman, Willett, ho, and Duncan. “As we recently said while sitting en banc: ‘[A] suit seeking prospective injunctive relief does not implicate Heck’s favorable-termination requirement….’ Wilson v. Midland Cnty., 116 F.4th 384, 398 n.5 (5th Cir. 2024)…. The panel in this case nevertheless applied the Heck bar to a street preacher’s claim for injunctive relief. That result is indefensible.”
  • Jarkesy v. Securities and Exchange Commission, 20-61007, petition for review of SEC order
    • per curiam (Elrod, Davis, Oldham), securities law, separation of powers, Seventh Amendment
    • On remand from the U.S. Supreme Court, reiterating its prior holdings in the case and issuing mandate, holding that the Seventh Amendment right to a jury trial applies to SEC civil enforcement actions, that such actions could not properly be assigned to agency adjudication under the public-rights doctrine, that Congress unconstitutionally delegated legislative power to the SEC when it granted the agency discretion to choose whether to bring enforcement actions in Article III courts or within its agency adjudicative process, and that statutory removal restrictions for SEC ALJs violated the President’s power of removal under the Take Care Clause.
  • B.W. v. Austin Independent School District, 22-50158, appeal from W.D. Tex.
    • King, J. (joined by Stewart, Richman, Southwick, Haynes, Graves, Higginson, Douglas, Ramirez, JJ.); Richman, J., concurring (joined by Southwick, Douglas, Ramirez, JJ.); Elrod, C.J., dissenting (joined by Jones, Smith, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Ho, J., dissenting (joined by Duncan, J.); Title VI
    • By reason of equally divided en banc Court, affirming decision of district court dismissing student’s Title VI claims that he was racially harassed at school by faculty and students.
    • Judge Richman concurred. “[A]ssuming that B.W.’s Fourth Amended Complaint does assert that AISD knew he suffered discrimination or harassment based on race and failed to take corrective measures in a timely manner, B.W. does not allege harassment [] based on [his] race, as opposed to political differences, that was so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to [the] educational opportunities or benefits provided by the school. Therefore, I would affirm the district court’s dismissal of his case.” (Internal quotation marks and footnotes omitted).
    • Chief Judge Elrod would have reversed and remanded. “In his complaint, B.W. avers that his public-school experience was marred by repeated verbal harassment and physical attacks on account of his white race. Because our court is equally divided, we are required to affirm the district court’s judgment. This is most unfortunate. This should be a relatively easy case under Rule 12(b)(6), applying the standards for a well-pleaded complaint. The subject matter of the case should not create confusion as to those standards. Because these factual allegations plausibly amount to severe, pervasive, and objectively offensive racial harassment, we should reverse the district court’s dismissal of his claims and remand for further proceedings.” (Internal citation omitted).
    • Judge Ho dissented. “[T]he allegations in this case are more substantial than in other cases where we have found racial harassment. … It’s racist to characterize whites as racist. Because it’s racist to attach any negative trait to a group of people based on their race. And it’s no less racist just because the victimized racial group is white. … [I]t’s not surprising that more institutions increasingly believe that they have cultural permission to tolerate (if not encourage) racism against whites, under the guise of promoting diversity. Racism is now edgy and exciting—so long as it’s against whites. But cultural permission is not Congressional permission. Federal laws like Title VI prohibit discrimination on the basis of race. So it may be politically correct in certain circles to discriminate against whites. But politically correct does not mean legally correct. It’s unlawful under Title VI to discriminate against anyone—anyone—because of their race.”

Unpublished

  • Turner v. American Family Insurance, 24-10106, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Higginson), prisoner suit
    • Dismissing as frivolous Texas state prisoner’s claims.
  • U.S. v. Leyva-Frayre, 24-10220, appeal from N.D. Tex.
    • Jones, J. (Jones, Barksdale, Ho), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. Vance, 24-10343, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Wrice v. Martin, 24-10449, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Wilson), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claims.
  • U.S. v. Garcia, 24-10467, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • LaCount v. U.S., 24-20161, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Wilson), Federal Tort Claims Act
    • Remanding to district court to rule on plaintiff’s motion for reconsideration, and holding case in abeyance.
  • U.S. v. Hill, 24-20167, appeal from S.D. Tex.
    • per curiam (Wiener, Ho, Ramirez), criminal
    • Affirming denial of a FRCP Rule 60(b) motion, which Court instead characterized as a motion under Federal Rule of Criminal Procedure 36.
  • U.S. v. Alexander, 24-30197, appeal from M.D. La.
    • per curiam (Richman, Douglas, Ramirez), criminal, sentencing
    • Affirming 180-month sentence on conviction of possession with intent to distribute cocaine and possession of a firearm by a convicted felon.
  • U.S. v. Maldonado, 24-40180, appeal from S.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Carrera-Contreras, 24-40392, appeal from E.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal, sentencing
    • Affirming 120-month sentence on conviction of illegal reentry.
  • Odem v. Townsend, 23-40583, appeal from E.D. Tex.
    • per curiam (Elrod, Dennis, Higginson), prisoner suit
    • Reversing dismissal of Texas state prisoner’s § 1983 claims and remanding for further proceedings.
  • U.S. v. Smith, 24-50119, appeal from W.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal, sentencing
    • Affirming conviction and 292-month sentence for conspiracy to import 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, with limited remand to correct clerical errors in written judgment.
  • Gerrans v. Hijar, 24-50481, appeal from W.D. Tex.
    • per curiam (Ho, Wilson, Ramirez), habeas corpus
    • Dismissing as frivolous appeal from dismissal of § 2241 petition.
  • U.S. v. Burk, 23-50602, appeal from W.D. Tex.
    • Wiener, J. (Wiener, Willett, Duncan), criminal, sentencing
    • Affirming convictions for wire fraud and money laundering, but vacating sentence insofar as it applied an abuse of position of trust enhancement and remanding for resentencing.
  • John Bludworth Shipyard, L.L.C. v. Manson Construction Co., 24-20399, appeal from S.D. Tex.
    • per curiam (Southwick, Willett, Oldham), Oldham, J., concurring in judgment; Willett, J., dissenting; stay, maritime law
    • Granting motion for reconsideration of order denying stay pending appeal of district court’s order vacating maritime arrest of a barge, and instead granting stay pending appeal.
    • Judge Oldham concurred in the judgment.
    • Judge Willett dissented and would deny the stay. “This stay proceeding lies at the intersection of various doctrines of maritime law, featuring unique facts that make the question presented a close one: whether work joining a vessel to two others and adding equipment constitutes ‘necessaries’ giving rise to a maritime lien on that vessel. The panel holds that it likely does. Respectfully, I see things differently and dissent.