Take the Fifth

Designated for publication

• Roake v. Brumley, 24-30706, appeal from M.D. La.
  • Ramirez, J. (Dennis, Haynes, Ramirez), Dennis, J., concurring; First Amendment, Establishment Clause, Free Exercise Clause, ripeness, standing, sovereign immunity
  • Affirming district court judgment of facial unconstitutionality and preliminary injunction of state law requiring display of Ten Commandments in all public school classrooms.
  • In June 2024, Louisiana enacted H.B. 71, mandating the display of the Ten Commandments in every public school classroom by January 1, 2025. The law specifies the size, content, and prominence of the display, includes a historical context statement, and permits additional foundational documents to be shown. Funding for the displays must come from donations, and implementation is entrusted to the Louisiana Board of Elementary and Secondary Education (BESE). The legislature declared its intent to honor American traditions of civic morality and cited Van Orden v. Perry (2005) to support the law’s constitutionality.
  • A coalition of multi-faith and non-religious parents and students sued Louisiana officials under the First Amendment’s Establishment and Free Exercise Clauses, seeking a preliminary injunction. They submitted an expert report from Dr. Steven Green, who found no historical precedent for permanent Ten Commandments displays in public schools. Louisiana moved to dismiss the suit, arguing lack of ripeness, standing, and sovereign immunity. The district court denied Louisiana’s motions and granted the injunction, prompting this appeal.
  • The Fifth Circuit affirmed jurisdiction under 28 U.S.C. § 1292(a)(1) and found the case ripe, as H.B. 71 imposes imminent and concrete requirements. The court rejected Louisiana’s reliance on Staley, noting that unlike in Staley, the challenged law here mandates specific content, display method, and implementation timeline. The plaintiffs face actual hardship—students would be exposed to religious messages in every classroom, and parents’ rights to direct their children’s religious upbringing would be burdened—satisfying both prongs of the ripeness test.
  • The court found that plaintiffs had standing under well-established Establishment Clause precedent, including Schempp, Lee v. Weisman, and Ingebretsen. Students face certain and continuous exposure to government-endorsed religious doctrine, and parents are directly affected. The court distinguished Louisiana’s argument against “offended observer standing,” clarifying that plaintiffs are not merely offended but are subject to coercive religious messaging with no opt-out. The court also noted that Kennedy v. Bremerton did not address or alter standing doctrine.
  • Louisiana claimed sovereign immunity for the BESE members and Superintendent, arguing they lacked enforcement authority. The court rejected this, emphasizing that BESE is required—not merely permitted—to implement H.B. 71 through enforceable rules, and that the Superintendent must carry out those policies. This enforcement connection sufficed under Ex parte Young, which permits suits against state officials for prospective relief where they are connected to enforcing unconstitutional laws.
  • The court upheld the district court’s finding that H.B. 71 likely violates the Establishment Clause under both Stone v. Graham—which struck down a nearly identical Kentucky law—and Kennedy. H.B. 71’s minimal requirements mirror those in Stone, and its legislative history showed a religious, rather than secular, intent. Expert testimony confirmed no longstanding tradition of Ten Commandments displays in public schools. The court affirmed the preliminary injunction, ruling it appropriate given the irreparable harm to First Amendment rights and the lack of public interest in enforcing unconstitutional laws. The district court’s notice requirement to all public schools was also upheld as a fitting remedy.
  • Judge Dennis concurred in full, writing separately to further address “offended observer” standing and the treatment of the Kennedy opinion. First, wrote Judge Dennis, the plaintiffs have standing under the well-established “offended observer” doctrine in Establishment Clause cases, citing Lee v. Weisman and Schempp as clear Supreme Court precedents. This doctrine allows individuals to sue when they are likely to face unwanted exposure to state-sponsored religious expression. The opinion rejects Louisiana’s argument—based on minority views of Justices Thomas and Gorsuch—that such standing is invalid, emphasizing that the majority of the Supreme Court has consistently recognized it. Judge Dennis highlights that in Lee, the Court acknowledged a student’s standing based solely on likely future exposure to a prayer, and Schempp similarly found standing based on exposure to religious exercises, reinforcing that the plaintiffs in the current case meet this standard.
  • Second, Judge Dennis addresses Louisiana’s argument that Kennedy v. Bremerton overruled Stone v. Graham, the case directly on point in striking down classroom displays of the Ten Commandments. Judge Dennis underscores that only the Supreme Court can overturn its own precedents, and Kennedy did not even mention Stone, nor did it reject the broader framework of Establishment Clause jurisprudence. Citing scholars Lupu and Tuttle, Judge Dennis explains that Kennedy merely abandoned the “endorsement test,” an offshoot of Lemon’s second prong, but left intact foundational requirements like secular legislative purpose and prohibitions on advancing religion. Thus, Stone remains controlling, and H.B. 71—a state-mandated, religious display aimed at impressionable public school students—clearly violates the Establishment Clause.

• Hat v. Murrill, 24-30272, appeal from W.D. La.
  • Graves, J. (Graves, Higginson, Wilson), Higginson, J., dissenting; First Amendment, freedom of speech, due process, standing, sovereign immunity
  • Affirming summary judgment in favor of state defendants on plaintiffs’ claims that amendments to Louisiana’s Infrastructure Trespass Statute violated their free-speech rights under the First Amendment.
  • In this case, a coalition of individuals and advocacy groups challenged the constitutionality of Louisiana’s Infrastructure Trespass Statute, arguing that recent amendments rendered it unconstitutionally vague and substantially overbroad, thus violating the Due Process Clause and First Amendment. Their claims arose from arrests made during protests against the Bayou Bridge Pipeline on land they claimed was privately owned with the protests occurring with the consent of the landowners. The district court dismissed their claims, finding that the statute was neither vague nor overbroad, and the Fifth Circuit affirmed that decision, concluding that the statute provides clear guidelines for law enforcement and does not criminalize a substantial amount of protected speech.
  • The court first addressed issues of sovereign immunity and standing. The Attorney General was dismissed as a defendant under Eleventh Amendment immunity, as she lacked a specific enforcement role in the statute’s application. The Landowner and Advocacy Plaintiffs were also dismissed for lack of standing: the former had not alleged imminent harm or future intent to host protests, while the latter could not trace their alleged injuries to any remaining defendant. Only the Arrested Plaintiffs, who were detained during the 2018 protests, had standing to bring facial challenges to the statute.
  • On the merits, the court held that the statute was not impermissibly vague under the Due Process Clause. It adopted a limiting construction offered by the district court, which interpreted “premises” to mean property over which someone has lawful authority to exclude others. This interpretation, coupled with the statute’s requirement that a person must first be forbidden from remaining on the premises, clarified the scope of prohibited conduct. The court also rejected claims of inconsistent law enforcement interpretations, finding that the district court’s construction provided sufficient guidance to prevent arbitrary enforcement.
  • Regarding the First Amendment, the court rejected the plaintiffs’ contention that the statute was a content-based restriction on speech. It concluded the law regulates conduct—specifically, trespass on critical infrastructure—not expression. The carveout for lawful protests and recreational activity further supported the court’s view that the statute was not designed to target speech based on viewpoint. The court also found no evidence of legislative intent to suppress dissenting views, emphasizing that legislative motive alone cannot render a law unconstitutional.
  • Lastly, the court held that the statute was not facially overbroad. Under the limiting construction, the statute only applied to non-public and privately controlled property, not traditional public forums like sidewalks or parks. Applying intermediate scrutiny, the court found that the statute served a substantial governmental interest in protecting critical infrastructure from interference and trespass. It imposed no more restriction than necessary, and the plaintiffs failed to show that the law’s unconstitutional applications substantially outweighed its legitimate sweep. The Fifth Circuit, therefore, upheld the district court’s grant of summary judgment to the defendants.
  • Judge Higginson dissented, a opining that Louisiana’s Infrastructure Trespass Statute is unconstitutionally vague, particularly as revised in 2018 to include all pipelines—over 125,000 miles statewide—as “critical infrastructure” without clear limitations. While the majority adopts a narrowing interpretation excluding public forums, the dissent contends this is not supported by the statute’s text and fails to resolve real-world ambiguity, especially in cases where landowners invited protestors but enforcement was initiated by trespassing pipeline companies. The statute does not adequately define who has authority to exclude individuals or what constitutes “premises,” lacks clarity on mental state or notice requirements, and has already been used in questionable arrests, including on public waterways. The dissent emphasizes that vague laws invite arbitrary enforcement and violate due process, especially when even property owners cannot discern their legal exposure. Citing shifting interpretations by the Attorney General and enforcement examples contrary to the majority’s construction, the dissent concludes that the statute’s vagueness renders it unconstitutional.

• U.S. v. Carpenter, 24-11076, appeal from N.D. Tex.
  • Wilson, J. (Higginson, Ho, Wilson), Ho, J., dissenting; criminal, Sixth Amendment, 404(b) evidence, juror excusal
  • Vacating convictions of healthcare fraud and conspiracy to commit same.
  • Dr. Brian Carpenter and Jerry Hawrylak were convicted of six counts of healthcare fraud and one count of conspiracy to commit healthcare fraud, stemming from a scheme to defraud TRICARE, the U.S. military’s health insurance program. Orchestrated by Britt and Matt Hawrylak, the scheme involved recruiting doctors to write medically unnecessary prescriptions for compounded medications, which were then filled by Rxpress Pharmacy and billed at inflated rates to TRICARE. Carpenter, a podiatrist, was initially hesitant to participate but ultimately agreed to write prescriptions without payment, allegedly to help veterans. Evidence showed Carpenter’s prescriptions were linked to Jerry, and although the defense claimed Carpenter was never paid, Jerry allegedly received money to compensate Carpenter.
  • Carpenter appealed on several grounds, including evidentiary rulings and juror dismissal. He argued the district court misapplied Federal Rule of Evidence 106 by excluding exculpatory parts of a recording that could have contextualized an inculpatory statement. Although the court erred in excluding these parts, the appellate court found the error harmless because the defense elicited similar denials during cross-examination. Carpenter also contended that limitations on cross-examining the Hawrylak brothers about their sentencing incentives and the exclusion of an expert witness violated his Sixth Amendment rights. However, the court found the jury had sufficient information to assess the brothers’ credibility, and therefore no reversible error occurred.
  • Additionally, Carpenter challenged the admission of a personal prescription he wrote for Jerry, arguing it violated Rule 404(b). The court ruled that the prescription was intrinsic to the conspiracy, given its similarity to the TRICARE prescriptions and its timing during the conspiracy, and therefore admissible. The appellate court agreed, concluding the evidence was not improperly admitted and did not demonstrate an abuse of discretion.
  • The appellate court’s vacatur centered on the district court’s dismissal of a juror after trial began, based solely on an email from the juror’s principal citing staffing concerns. The court failed to find the juror was “unable to perform” her duties under Rule 24(c), and the record reflected no such impairment. The Fifth Circuit held that excusing the juror without a legally relevant reason constituted an abuse of discretion and resulted in presumptive prejudice. Accordingly, the court vacated Carpenter’s convictions and remanded the case for a new trial.
  • Judge Ho dissented and would affirm the convictions. He opined that the district court did not abuse its discretion by excusing a seated juror—a schoolteacher—whose principal requested her return due to pressing classroom needs. The judge reasoned that under Federal Rule of Criminal Procedure 24(c), a juror may be dismissed if “unable to perform” her duties, and interpreted this language broadly to include employment-related obligations that materially interfere with jury service. Citing precedents such as Dumas and Rodriguez, Judge Ho maintained that excusing a juror based on an employer’s urgent need is permissible and has been upheld in similar circumstances. While acknowledging concerns about potential overreach, Judge Ho emphasized that trial judges are entrusted to evaluate such situations carefully and concluded that the juror’s dismissal here fell squarely within the court’s discretion, warranting affirmance of Carpenter’s conviction.

• Edwards v. Guardian Life Insurance of America, 24-60381, appeal from N.D. Miss.
  • Oldham, J. (King, Jones, Oldham), insurance, ERISA
  • Reversing judgment in favor of life insurer and rendering judgment for plaintiff.
  • After Pam Edwards died of cancer in 2022, her husband, Jimmy Edwards, sought to collect on her life insurance policy from Guardian Life Insurance. The insurer denied the claim, arguing that Pam’s group policy—originally intended to cover employees of her beauty salon, Allure—had been canceled after the salon dropped to a single participant. Although Guardian claimed it terminated the plan in January 2022, Pam’s longtime insurance agent never received notice of cancellation. Jimmy sued in federal court, but the district court ruled in favor of Guardian, finding that ERISA governed the plan and preempted Jimmy’s state law claims. On appeal, however, the Fifth Circuit reversed, concluding that Allure had employees under the federal definition, making ERISA applicable, and triggering Guardian’s responsibilities under the plan.
  • The Fifth Circuit found that Allure’s workers were indeed employees based on factors like Pam’s control over work conditions, the provision of tools, and payment structure. Although Guardian had the contractual right to cancel the policy once Pam became the sole insured, the court held that the company waived this right by continuing to accept premiums for 26 months after its cancellation right vested. The court found this prolonged acceptance of payments—especially during a period when Pam was physically unable to manage business affairs—amounted to a waiver of Guardian’s cancellation right. Rejecting Guardian’s argument that its pandemic-era leniency should excuse the delay, the court emphasized that equity demanded enforcing the policy. It reversed the district court’s judgment and rendered judgment in favor of Jimmy Edwards.

Unpublished decisions

• Westbrook v. Dallas County, 24-10942, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas), appellate jurisdiction
  • Dismissing appeal of dismissal of sec. 1983 case as frivolous, for lack of a timely filed notice of appeal.

• U.S. v. Hernandez, 24-10974, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Williams, 24-11111, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hurley, 24-20446, appeal from S.D. Tex.
  • per curiam (Jolly, Haynes, Graves), criminal, sentencing
  • Affirming above-guideline sentence imposed upon the revocation of his supervised release.

• Wyre v. Texas, 24-20523, appeal from S.D. Tex.
  • per curiam (Smith, Graves, Engelhardt), sec. 1983, sovereign immunity
  • Dismissing as frivolous appeal of dismissal of sec. 1983 for failure to state a claim and under sovereign immunity.

• Bryant v. Texas City ISD, 24-40772, appeal from S.D. Tex.
  • per curiam (Southwick, Higginson, Willett), employment discrimination, appellate jurisdiction
  • Dismissing for lack of jurisdiction appeal from dismissal of employment discrimination claim.

• Henderson v. Atain Insurance Co., 25-50187, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), insurance, personal tort
  • Affirming dismissal of plaintiff’s claims, with no description of type of case or appellate issues raised.

• U.S. v. Valez-Zavala, 24-50651, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ambrosio-Vail, 24-50795, c/w 24-50797, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.