Take the Fifth

Designated for publication

• Le v. U.S., 24-10123, appeal from N.D. Tex.
  • Higginbotham, J. (Elrod, Higginbotham, Southwick), personal tort, Federal Tort Claims Act
  • Affirming judgment in favor of plaintiff in personal injury and death arising from an auto collision with a U.S. Postal Service vehicle that then caused the plaintiff to go forward and collide with his neighbor’s house.
  • The Court analyzed a case under the Federal Tort Claims Act (FTCA), applying Texas substantive law, which incorporates principles of comparative responsibility. The Government argued that Mr. Le bore primary responsibility for the second car crash and his injuries, citing his failure to brake and his preexisting condition. However, the Plaintiffs successfully presented countervailing evidence that Mr. Le’s neurological dysfunction, caused by the first impact with a postal truck, prevented him from stopping the vehicle. The district court agreed, relying on medical imaging and expert testimony to conclude that the first impact triggered a spinal fracture, which led to Mr. Le’s loss of motor control and subsequent crash. The appellate court found no clear error in the district court’s decision.
  • The Government also contended that Mr. Le’s failure to wear a seatbelt contributed to his injuries. However, the evidence was conflicting: while one EMT reported that Mr. Le said he wasn’t wearing a seatbelt, multiple family members and documents supported the claim that he habitually wore one. The Court noted that the seatbelt’s condition could not be definitively linked to nonuse, and thus deferred to the district court’s finding. The Government further tried to attribute post-operative complications to Dr. Berchuck, the surgeon who treated Mr. Le. Yet, they failed to prove the doctor breached the standard of care or caused Mr. Le’s esophageal fistula. The district court’s rejection of this argument was upheld due to insufficient evidence and vague expert testimony.
  • On damages, the district court awarded substantial sums for Mr. Le’s pain, suffering, disfigurement, and impairments, both past and future. The Government challenged the awards as excessive, but the Court applied the “maximum recovery rule,” comparing Mr. Le’s situation to similar Texas cases, such as Holcombe and Burry. Mr. Le’s injuries—including quadriplegia, double amputation, and a fistula—were deemed uniquely severe, justifying the amounts. The appellate court upheld all damage awards, finding them plausible and within reason. Finally, the court rejected the Government’s argument that Mr. Le’s death during the appeal nullified future damages, asserting that such a death does not affect the validity of a final judgment or its equitable application.

• Sims v. Dallas Independent School District, 24-10189, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), sec. 1983, vicarious liability
  • Affirming district court’s dismissal of plaintiffs’ claim arising from death of their mother, a special education teacher, after she had been assaulted by a student.
  • In this case, the Fifth Circuit held that plaintiffs cannot establish direct liability against the Dallas Independent School District (DISD) under 42 U.S.C. § 1983 through the state-created danger theory of substantive due process, because such a theory has never been adopted by the Supreme Court or the Fifth Circuit. To hold DISD liable, plaintiffs must prove a constitutional violation caused by an official policy or custom, known to a policymaker, which they attempted to do by invoking the state-created danger theory. However, the Court reiterated its consistent rejection of that theory, noting that it fails both prongs of the Supreme Court’s test for recognizing unenumerated substantive due process rights: it lacks a clear, fundamental liberty interest and is not deeply rooted in the nation’s history and tradition. The court also dismissed plaintiffs’ alternative ratification theory, as it still depended on proving a constitutional violation, which the rejected state-created danger theory could not provide.

• U.S. v. Davis, 24-20039, c/w 24-20475, appeal from S.D. Tex.
  • Ho, J. (Ho, Engelhardt, Douglas), criminal, forfeiture, attorney error, amendment
  • Affirming forfeiture order.
  • Legal practice demands exceptional precision, as even minor errors can have catastrophic consequences. This principle was exemplified in a case involving Gravity Capital, which had a potential interest in property subject to criminal forfeiture. Due to a critical drafting error, the petition asserting this interest was mistakenly filed on behalf of “Gravity Funding”—a separate entity that had no involvement in the transaction. Because strict compliance with statutory requirements under 21 U.S.C. § 853(n) is mandatory, the district court rejected the petition, and the Fifth Circuit affirmed. The misidentification of the petitioner rendered the claim invalid, despite counsel’s later explanation that the error stemmed from using a recycled pleading from another case.
  • Furthermore, attempts to amend the petition to substitute Gravity Capital for Gravity Funding were deemed untimely, falling well outside the 30-day statutory window. The court emphasized that federal law provides no leeway for late or deficient petitions and bars alternative challenges outside the § 853(n) framework. As Gravity Capital failed to file a valid and timely petition, it not only lost its claim to the forfeited property but also forfeited its ability to challenge the competing interest of another claimant, Tiras. Though amici expressed sympathy, likening the outcome to the harsh denial of certiorari in other high-stakes cases due to procedural missteps, the Court concluded that the law’s strict requirements left no room for relief. The decision serves as a stark reminder of the unforgiving nature of procedural errors in legal filings.

• Strife v. Aldine Independent School District, 24-20269, appeal from S.D. Tex.
  • Graves, J. (Graves, Engelhardt, Oldham), employment discrimination, Americans with Disabilities Act
  • Affirming in part and reversing in part dismissal of plaintiff’s claims that school district violated her rights in delaying (though not denying) her requested accommodation to have a service dog while she was employed as a teacher.
  • Strife brought a failure-to-accommodate claim against AISD, arguing that a six-month delay in approving her request to use a service dog at work violated the ADA. While the first two elements of such a claim—that she is a qualified individual with a disability and that the employer knew of her limitations—were not in dispute, the case turned on whether AISD’s delay constituted a failure to reasonably accommodate her disability. The law requires both the employer and employee to engage in a good-faith, interactive process to determine a suitable accommodation. Strife alleged that AISD unnecessarily prolonged this process, despite her repeated provision of documentation supporting her request, and that the accommodation was granted only after she filed a lawsuit and a court hearing approached.
  • The Court found that Strife’s claims plausibly indicated that AISD had not acted in good faith and that the delay itself may have created suboptimal working conditions, which could amount to a failure to accommodate under the ADA. It emphasized that unreasonable delays can reflect a lack of good faith and that accommodations are not limited to essential job functions or adverse employment actions. Strife’s complaint also included allegations that AISD offered no alternatives and that the district’s actions suggested it tried to avoid compliance. Therefore, the Court concluded that her claim was sufficiently pled and reversed the district court’s dismissal, remanding the case for further proceedings.
  • Strife appealed the dismissal of her hostile work environment claim, which required her to allege that she experienced unwelcome, disability-based harassment that was severe or pervasive enough to alter her employment conditions, and that AISD failed to act after becoming aware of it. While she argued that AISD engaged in a six-month campaign of harassment in retaliation for her accommodation request, her complaint identified only two incidents: AISD’s delay in granting the accommodation and its demand for an independent medical exam. The Court found these actions insufficient to meet the legal standard for harassment, emphasizing that workplace disagreements over accommodations do not, on their own, constitute a hostile work environment. As a result, the district court properly dismissed the claim.
  • Strife challenged the district court’s summary judgment ruling on her disability discrimination claim, which requires showing she has a disability, is qualified for her job, and faced an adverse employment action due to her disability. She argued that AISD discriminated against her by delaying her accommodation request and by requiring an independent medical exam. However, the court found that AISD’s delay did not change her job’s terms or conditions—she retained her role, pay, and performance standing—and she suffered no more than minimal harm. Similarly, the medical exam never occurred and, even if it had, there was no indication it would have affected her employment. Thus, the Court affirmed the dismissal of her claim.
  • Strife challenged the district court’s grant of summary judgment on her ADA retaliation claim, which requires showing protected activity, an adverse employment action, and a causal link between the two. She alleged AISD retaliated by delaying her accommodation and requesting an independent medical exam. While the EEOC suggests such an exam could be retaliatory in some cases, the Court found AISD had a legitimate reason: Strife’s documentation failed to address whether alternative accommodations could suffice, and the ADA does not guarantee a preferred accommodation. Once Strife’s attorney confirmed no alternatives were viable, AISD approved the request and dropped the exam. Strife argued AISD’s repeated document requests and lack of suggested alternatives showed pretext, but the court held these actions reflected a legitimate interactive process rather than retaliation. Thus, the summary judgment ruling was affirmed.
  • Strife also alleged that AISD violated the ADA’s anti-interference provision, which prohibits coercion, threats, intimidation, or interference with an individual’s exercise of rights under the ADA. While courts differ slightly on the elements of such a claim, the Fifth Circuit noted that at minimum, a plaintiff must show interference based on the exercise or enjoyment of ADA rights. Strife argued her claim was distinct from retaliation but based on the same facts. However, the Court found she failed to provide specific evidence showing AISD interfered with her rights. The record showed AISD was engaged in a legitimate interactive process to assess her accommodation request, not acting to hinder her ADA rights. As such, the district court properly granted summary judgment on Strife’s interference claim.

• Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 23-20337, appeal from S.D. Tex.
  • Willett, J. (en banc; joined by all: Elrod, Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas Ramirez); Ho, J., concurring (joined by Higginson, J.); removal, appellate jurisdiction, en banc
  • Returning case to original panel, assured of its appellate jurisdiction, to resolve remaining issues on appeal.
  • In this en banc decision, the Court overturns its previous precedent set in In re Weaver, correcting what it identifies as a misapplication of 28 U.S.C. § 1447. Under § 1447(d), federal appellate courts generally lack the authority to review remand orders returning removed cases to state court. However, the Supreme Court has clarified that this restriction only applies when the remand is based on two specific grounds listed in § 1447(c): (1) a defect in the removal procedure or (2) a lack of subject-matter jurisdiction. The core issue here is whether a defendant’s waiver of the right to remove—through participation in state court—fits within either of those two categories.
  • The original Weaver decision treated waiver as equivalent to a jurisdictional defect, thereby making such remand orders unreviewable under § 1447(d). That conclusion stemmed from an inference that because the district court believed removal was unavailable, it must have deemed jurisdiction lacking. The Court now rejects that inference, pointing out that waiver is a common-law doctrine, not a jurisdictional issue. Jurisdiction is determined by constitutional and statutory authority, not by a party’s actions. Further, waiver does not share the legal traits of jurisdiction—it can be waived, is not raised sua sponte by courts, and is reviewed under a different standard.
  • Additionally, the Court addresses and rejects a revised interpretation of Weaver offered by Abraham Watkins, which attempts to reframe waiver as a procedural defect in the removal process. The Court finds this argument flawed because § 1447(c)’s reference to defects has consistently been interpreted to mean violations of statutory removal requirements—not broader, judge-made doctrines like waiver. Legislative amendments to § 1447(c) over time have reaffirmed this narrow interpretation, and other circuits have uniformly rejected efforts to classify waiver as a statutory defect.
  • Ultimately, the Court concludes that waiver-based remand orders do not fall within § 1447(c)’s categories and are therefore not shielded from appellate review by § 1447(d). As such, the Court overrules Weaver, aligning itself with the majority of circuits that have similarly rejected Weaver’s logic. This decision ensures that remand orders based solely on waiver remain subject to appellate scrutiny, restoring a more accurate interpretation of federal removal and remand statutes.
  • Judge Ho concurred, emphasizing that en banc courts are not obligated to decide every issue in a case and can appropriately return unresolved matters to the original panel. This principle reflects a practical use of judicial resources, allowing en banc review to focus solely on questions of exceptional importance.

• Texas v. U.S. EPA, 17-60088, c/w 21-60673, review of EPA order.
  • Southwick, J. (Elrod, King, Southwick), Elrod, J., concurring; administrative law, Clean Air Act
  • On panel rehearing, remanding to EPA for further proceedings with regard to declaration of nonattainment status under the Clean Air Act.
  • The petitioners challenge the EPA’s designation of parts of Rusk and Panola counties as nonattainment areas for sulfur dioxide (SO₂), asserting that the EPA violated the Clean Air Act (CAA) and the Administrative Procedure Act (APA). They argue that EPA improperly relied on flawed modeling data, disregarded monitoring data suggesting the areas met air quality standards, and unfairly treated similar counties in other states differently. They also claim the EPA misinterpreted its legal authority by refusing to delay designation until Texas could collect more monitoring data. Central to their argument is that the evidence at the time did not clearly support a nonattainment designation, thus requiring an “unclassifiable” label under the CAA.
  • The Court, applying arbitrary and capricious review under the APA, closely examined EPA’s statutory interpretation and factual evaluation. It emphasized that the EPA must base decisions on “available information” and designate an area “unclassifiable” if that information cannot reliably establish attainment or nonattainment. The Court agreed that EPA’s abandonment of its own guidance—requiring evidence to “clearly demonstrate” attainment status—was not supported by a sufficient explanation. Though the Court acknowledged the agency’s expertise, it stressed that the best reading of the statute demanded clarity and reliability in evidence used for designations.
  • The Court found that EPA failed to reconcile conflicting evidence between air quality monitoring data and Sierra Club’s modeling, which EPA used to support its nonattainment decision. The modeling predicted SO₂ levels far above what monitoring data showed, but EPA did not adequately explain the discrepancy. Furthermore, while EPA dismissed Luminant’s alternative model for noncompliance with procedural regulations, the Court found that the model’s rejection was not inherently unlawful. However, the EPA’s continued reliance on Sierra Club’s modeling—despite its known limitations—without providing a rational, evidence-based justification rendered the agency’s decision arbitrary and in violation of the APA.
  • The Court ruled that EPA’s nonattainment designation for Rusk and Panola counties could not stand. The agency failed to treat similar cases consistently, did not adequately consider available monitoring data, and erroneously believed it lacked authority to delay designation. The Court remanded the matter for the EPA to reconsider the designation in accordance with proper statutory interpretation and APA requirements, stressing that decisions must be based on reasoned analysis and reliable data, especially when the evidence is conflicting or inconclusive.
  • Chief Judge Elrod concurred, recognizing the new panel opinion’s shift from the prior version and its improved handling of legal and factual issues, particularly in light of Loper Bright Enterprises v. Raimondo, which requires courts to independently interpret statutes. Chief Judge Elrod agrees with the majority’s finding that the EPA failed to reconcile discrepancies between Sierra Club’s modeling and monitoring data, resulting in arbitrary decision-making, and that the EPA violated the APA by relying on inadequate and questionable evidence to support a nonattainment designation for Rusk and Panola Counties. Chief Judge Elrod agrees that the appropriate designation should have been “unclassifiable” and supports remanding the case. While reserving some reservations about EPA’s treatment of Luminant’s alternative model, she sees no need for further dissent on that issue, as EPA must now follow the court’s statutory interpretation on remand.

• Johnson v. Collier, 25-70009, appeal from S.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), death penalty, stay
  • Affirming denial of motion for stay of execution.
  • Matthew Lee Johnson was convicted of capital murder and sentenced to death, a verdict affirmed by the Texas Court of Criminal Appeals and ultimately upheld through multiple state and federal habeas challenges. After the U.S. Supreme Court denied certiorari in early 2024, the Texas attorney general’s office notified the trial court that all litigation had concluded and suggested execution dates. Johnson opposed the attorney general’s involvement, arguing it lacked authority to request the court to set an execution date. The trial court nonetheless proceeded, consulting parties and ultimately setting Johnson’s execution for May 20, 2025, despite the district attorney’s silence and Johnson’s objections.
  • Johnson sought relief in state court through a mandamus petition, arguing that the trial court’s scheduling process violated Texas law and his constitutional rights. The Texas Court of Criminal Appeals denied that request without a written opinion. He then filed a federal § 1983 suit claiming the execution scheduling process violated his due process and equal protection rights, and he requested a stay. The federal district court denied the stay, finding that Johnson failed to show a likelihood of success on his constitutional claims and dismissing the case with prejudice. Johnson appealed the denial of the stay.
  • On review, the Fifth Circuit affirmed the district court’s ruling. It found Johnson’s due process claim lacking because he failed to identify a protected liberty interest or any federal right violated by the trial court’s procedure, which complied with state law. His equal protection claim also failed because he could not show disparate treatment or a lack of rational basis for the state’s actions. The Court concluded that none of the factors justified a stay, particularly given the state’s interest in enforcing the sentence and the public’s interest in finality. Johnson’s case was therefore dismissed, and the execution date remained in place.

Unpublished decisions

• U.S. v. Vargas, 24-10368, appeal from N.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Williams, 24-10763, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Wilkerson v. Jefferson Parish, 21-30716, appeal from E.D. La.
  • Richman, J. (Wiener, Richman, Willett), employment discrimination, Title VII
  • Affirming summary judgment dismissal of race and sex discrimination claims.

• U.S. v. Gonzalez, 24-40539, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Gaudette v. Angel Heart Hospice, 24-50523, appeal from W.D. Tex.
  • per curiam (Richman, Douglas, Ramirez), Title VII, employment discrimination
  • Affirming dismissal of employment discrimination claims based on sexual orientation.

• U.S. v. Reyes-Salinas, 24-50801, appeal from W.D. Tex.
  • per curiam (Elrod, Haynes, Duncan), criminal
  • Affirming conviction of illegal reentry.