January 31, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • Neese v. Becerra, 23-10078, appeal from N.D. Tex.
    • per curiam (voting against rehearing en banc: Elrod, Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez, JJ.; voting for rehearing en banc: Ho, J.–yes, a 16-1 vote againt rehearing en banc); Duncan, J., concurring in denial of rehearing (joined by Jones, Smith, Willett, Oldham, Engelhardt, Wilson, JJ.); Ho, J., dissenting from denial of rehearing; Affordable Care Act, Title IX, standing, en banc
    • Denying rehearing en banc of panel decision (Jones, Haynes, Douglas, per curiam; Jones, J., concurring) that vacated summary judgment for plaintiffs in challenge to Notification of Interpretation and Enforcement of Section 157 of the ACA, which interpreted discrimination on the basis of sex to include discrimination on the basis of sexual orientation and on the basis of gender identity; vacated on ground that standing was lacking.
    • Judge Duncan concurred in the denial of rehearing. After noting that it was uncontroversial that the plaintiff doctor lacked standing to challenge the agency guidance at issue, he wrote, “But let’s suppose, as our dissenting colleague argues, that there was some way to make a case for Dr. Neese’s standing. Even so, en banc would have been pointless. That is for the simple reason that the challenged guidance has been superseded, not once but twice.” Judge Duncan observed that the guidance had been superseded by the promulgation of a final rule, which itself is currently under challenge in multiple district courts, including two in this Circuit. Moreover, he noted, “None of this may matter, however, in light of actions already taken by the new Administration. On his first day in office, President Trump ordered a reorientation of the Executive Branch around the ‘immutable biological reality of sex,’ and, in doing so, rescinded the guidance challenged here. … President Trump’s Order binds the entire Executive Branch to embrace the ‘biological reality’ that there are only ‘two sexes, male and female,’ and that these are ‘immutable.’ That moots this case.”
    • Judge Ho dissented from the denial of rehearing, insisting that the plaintiff doctor who was unwilling to provide hormone treatments and puberty blockers to minors suffering from gender dysphoria had standing to challenge the agency guidance.

Unpublished

  • Richard v. Dollar Tree Stores, Inc., 24-30443, appeal from W.D. La.
    • per curiam (Davis, Smith, Higginson), personal tort
    • Affirming summary judgment dismissal of slip-and-fall claim.
  • U.S. v. Hemani, 24-40137, appeal from E.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal, Second Amendment
    • Affirming dismissal of indictment of defendant for possessing a firearm while being an unlawful user of a controlled substance, as unconstitutional as applied.
  • Balentine v. U.S., 24-40212, appeal from S.D. Tex.
    • per curiam (Dennis, Haynes, Ramirez), tax
    • Affirming dismissal of plaintiffs’ suit seeking refund for alleged overpaid taxes, on basis of lack of jurisdiction for failure to first pay an assessed penalty by the IRS for failure to pay underpaid taxes.
  • U.S. v. McAlpin, 24-60181, appeal from S.D. Miss.
    • per curiam (Haynes, Higginson, Douglas), criminal
    • Dismissing appeal of 327-month sentence and conviction for conspiracy against rights, deprivation of rights under color of law, conspiracy to obstruct justice, and obstruction of justice, on basis of appeal-waiver in plea agreement.
  • Mejia-Andrade v. McHenry, 24-60326, petition for review of BIA order
    • per curiam (Barksdale, Stewart, Ramirez), immigration
    • Denying Mexican citizen’s petition for review of BIA order denying his motion for remand.
  • Cortez v. McHenry, 24-60336, petition for review of BIA order
    • per curiam (Barksdale, Haynes, Wilson), immigration
    • Denying Mexican citizen’s petition for review of BIA order upholding the immigration judge’s (IJ) denial of: asylum, withholding of removal, and protection under the Convention Against Torture.