May 28, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • The Heidi Group, Inc. v. Texas Health and Human Services Commission, 23-50303, appeal from W.D. Tex.
    • Oldham, J. (Richman, Oldham, Ramirez, JJ.; Judges Richman and Ramirez did not concur in footnote 5); Fourth Amendment, state-law immunity, state constitutional claims, qualified immunity
    • On claims arising from alleged conspiracy to steal documents from a cloud-based file storage system against various Texas agencies and in official- and individual-capacity against officials of those agencies, dismissing for lack of jurisdiction appeals by Texas state agencies and official-capacity defendants on plaintiff’s religious discrimination claim; dismissing official capacity defendants’ appeal as to plaintiff’s Fourth Amendment and Tex. Const. art. I, § 9 claims; reversing denial of two individual defendants’ motion for judgment on the pleadings; affirming denial of another individual defendant’s motion for judgment on the pleadings as to that claim; and affirming denial of the individual capacity defendants’ motion for judgment on the pleadings as to plaintiff’s unlawful-access claim.
    • In 2016, Texas launched two state-funded reproductive healthcare initiatives—Healthy Texas Women and the Family Planning Program—intended to exclude providers associated with abortion. The Heidi Group, a pro-life organization, was awarded contracts under both programs despite its lack of experience in state contracting. However, operational delays, lack of guidance from the Texas Health and Human Services Commission (THHSC), and internal opposition at the agency created significant challenges. After a negative media article—allegedly fueled by THHSC leaks—criticized Heidi’s performance, THHSC terminated the contracts, despite internal assessments suggesting Heidi was performing adequately. Heidi claims the termination was part of a broader effort by THHSC and its Office of Inspector General (OIG) to dismantle the organization for its pro-life stance.
    • The Fifth Circuit addressed whether several orders from the district court, mostly denying immunity and dismissal motions, were immediately appealable. While the Court had jurisdiction over Heidi’s Fourth Amendment claim against a specific state official in his individual capacity, it found no pendent jurisdiction over related claims, such as those alleging religious discrimination or claims against officials in their official capacities. The Court emphasized that pendent appellate jurisdiction is rare and only available in limited, narrowly defined scenarios. Because Heidi’s religious discrimination and official capacity claims involved different legal elements and facts than the Fourth Amendment and unlawful-access claims, the Court declined to hear the appeals regarding those claims at this stage.
    • The Court then turned to the core Fourth Amendment claim, concluding that one official—Gaylon Dacus—used a disgruntled former employee as a state agent to unlawfully access Heidi’s private Dropbox files. Applying both the Miller and Bazan tests for determining agency, the Court found Dacus’s repeated requests and encouragement of these surreptitious searches constituted state action. Because Dacus bypassed normal legal procedures like subpoenas and failed to provide any form of precompliance review, the Court held that he violated clearly established Fourth Amendment protections. Accordingly, Dacus was denied qualified immunity.
    • The Court rejected Dacus’s counterarguments, particularly that Heidi lacked a reasonable expectation of privacy in its Dropbox content. The Court reasoned that the Fourth Amendment protects the contents of stored digital communications just as it protects letters and emails, provided they are not publicly accessible. It also dismissed the claim that Heidi’s state contracts implied blanket consent to such searches, noting that contractual provisions could not override constitutional protections. Lastly, the Court denied immunity for the unlawful-access claim under Texas law, finding that the officials’ actions—covertly accessing records through an ex-employee rather than lawful means—could not be considered reasonable or in good faith.
    • In footnote 5, not joined by Judges Richman and Ramirez, Judge Oldham questioned why denial of official immunity under state law was subject to the collateral order doctrine to the same extent as denial of immunity under federal law. Judge Oldham opined that the collateral-order doctrine is a narrow, atextual exception to the final-judgment rule under 28 U.S.C. § 1291, and the Supreme Court has emphasized that it should be applied sparingly; that, while immediate appeals are appropriate for denials of federal immunities like qualified or absolute immunity—due to the federal interests involved—there is little justification for extending the same treatment to denials of state-law immunities, which lack a federal statutory or constitutional basis; and that, therefore, it is unclear why federal courts would stretch jurisdictional rules to accommodate state-law immunities, especially when states themselves may not allow such appeals.
  • United Natural Foods, Inc. v. National Labor Relations Board, 21-60532, petition for review of NLRB order
    • Higginson, J. (Higginbotham, Higginson, Oldham), Oldham, J., dissenting; labor law, administrative law
    • On remand from the Supreme Court to reconsider in light of Loper Bright, again determining that the Court had jurisdiction to review the petition for review of an NLRB withdrawal of an unfair labor practice complaint and denying that petition.
    • The case began when United Natural Foods Inc. (UNFI) filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against two Teamsters unions, alleging violations of the National Labor Relations Act (NLRA). A regional director, under then-General Counsel Peter Robb, issued a consolidated complaint against both the unions and UNFI. However, after Robb’s removal and Peter Sung Ohr’s appointment as Acting General Counsel by President Biden, the complaint against the unions was withdrawn before the hearing began. UNFI objected, filed motions with the Board and the Acting General Counsel, and ultimately petitioned the Fifth Circuit, arguing that the complaint’s dismissal was unlawful and that Ohr’s appointment was invalid.
    • The NLRB dismissed UNFI’s appeal, citing the General Counsel’s unreviewable prosecutorial discretion to withdraw complaints before hearings. UNFI argued that once it filed for summary judgment, the matter transitioned from a prosecutorial to an adjudicatory phase, which would require Board—not General Counsel—authority. The Board disagreed, emphasizing that the case had not yet been transferred to the Board or advanced to a hearing. Initially, the Fifth Circuit denied UNFI’s petition, deferring to NLRB’s interpretation under Chevron.
    • Following the Supreme Court’s 2024 Loper Bright decision overturning Chevron, the Court vacated and remanded this case for reconsideration without Chevron deference. On remand, the Fifth Circuit independently reviewed the statutory framework and still found that the Board acted within its authority. It reaffirmed that prosecutorial discretion under § 153(d) of the NLRA includes the ability to dismiss complaints prior to hearings, even after a summary judgment motion is filed. The court reasoned that such a motion does not transform the proceeding into an adjudication unless the Board has formally acted on it, such as issuing a notice to show cause.
    • The court also rejected UNFI’s arguments invoking Rule 41 of the Federal Rules of Civil Procedure, noting that labor proceedings before the NLRB are governed by their own rules and structure. The court declined to adopt the dissent’s reasoning, which would have interpreted § 160(b) of the NLRA as incorporating Rule 41. The Fifth Circuit emphasized longstanding precedent, regulatory history, and Supreme Court decisions such as UFCW, which distinguish between prosecutorial and adjudicatory functions in NLRB proceedings. It concluded that permitting summary judgment filings to limit prosecutorial discretion would upend this structure.
    • Lastly, the court reaffirmed its prior ruling in Exela Enterprise Solutions v. NLRB, which upheld the President’s authority to remove a General Counsel without cause. It found no merit in UNFI’s argument that Ohr’s actions were void due to Robb’s allegedly unlawful removal. With no changes in the legal analysis of Ohr’s appointment and the Board’s authority, the court concluded it had jurisdiction and denied both the NLRB’s motion to dismiss and UNFI’s petition for review. The Acting General Counsel’s withdrawal of the complaint was a lawful act of prosecutorial discretion.

Unpublished decisions

  • U.S. v. Olivas, 24-10268, appeal from N.D. Tex.
    • per curiam (Jolly, Graves, Oldham), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Peabody, 24-10270, appeal from N.D. Tex.
    • per curiam (Jolly, Graves, Oldham), criminal
    • Affirming conviction of wire fraud.
  • U.S. v. Monsivais, 24-10666, appeal from N.D. Tex.
    • per curiam (Jolly, Graves, Oldham), criminal, sentencing
    • Affirming 21-month sentence on revocation of supervised release.
  • U.S. v. Turner, 24-10741, appeal from N.D. Tex.
    • per curiam (Jolly, Graves, Oldham), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Hernandez-Rios, 24-10872, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Moore v. JP Morgan Chase, 24-11075, appeal from N.D. Tex.
    • per curiam (Jolly, Graves, Oldham), breach of contract
    • Affirming dismissal of breach of contract claim by plaintiff against bank that refused to accept payment without use of actual money.
  • Andrade v. Internal Revenue Service, 24-20376, appeal from S.D. Tex.
    • per curiam (Jones, Dennis, Southwick), tax law
    • Dismissing for lack of appellate jurisdiction appeal from issuance of summonses to third-party banks.
  • U.S. v. Preston, 24-20433, appeal from S.D. Tex.
    • per curiam (Barksdale, Stewart, Ramirez), criminal
    • Affirming revocation of supervised release.
  • U.S. v. Ballard, 24-30290, appeal from E.D. La.
    • per curiam (Jolly, Graves, Oldham), criminal, sentencing
    • Affirming 60-month sentence on conviction of possession of a firearm by a felon.
  • U.S. v. Pouncy, 24-30487, appeal from W.D. La.
    • per curiam (Dennis, Ho, Oldham), criminal, sentencing
    • Affirming 199-month sentence on conviction of conspiracy to possess with intent to distribute cocaine and crack cocaine
  • U.S. v. Lopez-Alvarado, 24-30490, appeal from M.D. La.
    • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
    • Affirming 36-month sentence on conviction of illegal reentry.
  • Thomas v. Richard, 24-30678, appeal from W.D. La.
    • per curiam (Dennis, Ho, Oldham), sec. 1983
    • Affirming dismissal of sec. 1983 claim as not being made against state actors.
  • U.S. v. Henderson, 24-30718, appeal from W.D. La.
    • per curiam (Haynes, Higginson, Oldham), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Rice, 23-40358, appeal from E.D. Tex.
    • per curiam (Elrod, Haynes, Duncan), criminal, sentencing
    • Affirming 48-month sentence on revocation of supervised release.
  • U.S. v. Fuentes-Gavarrette, 24-40511, appeal from S.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal, sentencing
    • Affirming 120- and 240-month sentences on conviction of conspiracy to transport aliens within the United States, conspiracy to launder monetary instruments, and engaging in monetary transactions in property derived from specified unlawful activity.
  • U.S. v. Bacon, 24-40629, appeal from S.D. Tex.
    • per curiam (Jones, Dennis, Southwick), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Robertson, 23-40648, appeal from E.D. Tex.
    • per curiam (Elrod, Haynes, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.