Take the Fifth

Designated for publication

• U.S. v. Planned Parenthood Federation of America, Inc., 23-11184, appeal from N.D. Tex.
  • En banc, ordering en banc rehearing with no dissents or concurrences from the rehearing order; False Claims Act, en banc
    • Granting en banc rehearing of unpublished February 26, 2025, panel opinion (Barksdale, Southwick, Graves, per curiam) reversing denial of summary judgment dismissal of plaintiff’s implied-false-certification claim and remanding for dismissal of case.

• Spirit Aerosystems, Inc. v. Paxton, 24-50984, appeal from W.D. Tex.
  • Higginson, J. (Davis, Higginson, Douglas), search and seizure, administrative law, standing
  • Vacating summary judgment in favor of airplane part manufacturer challenging the state statutory power of the Texas attorney general to request certain records and materials for examination without any opportunity for precompliance review, on basis that recent Texas Supreme Court decision provided the opportunity for precompliance review that was missing from the statutory text, and remanding for further proceedings.
  • In this case, Spirit AeroSystems challenged the constitutionality of a Texas statute authorizing the Attorney General to issue Requests to Examine (RTEs) corporate records without providing an opportunity for precompliance judicial review. The statute imposes serious penalties for noncompliance, including revocation of business rights and criminal sanctions. Spirit, a Delaware corporation with a Texas facility, received an RTE amid an investigation into Boeing 737 manufacturing issues. Spirit argued that the statute’s lack of precompliance review violated the Fourth Amendment as interpreted by City of Los Angeles v. Patel. The district court agreed, issuing an injunction to block the enforcement of RTEs against Spirit.
  • On appeal, the Fifth Circuit noted that the Texas Supreme Court, in Annunciation House v. Paxton, had since interpreted the statute to allow precompliance judicial review via Texas Rule of Civil Procedure 176.6. Because this interpretation resolved the constitutional defect by ensuring an avenue for review before penalties, the Fifth Circuit vacated the district court’s judgment and remanded for further proceedings in light of Annunciation House. Nonetheless, the court analyzed the case under Patel to determine whether the RTE statute, as originally applied, indeed violated the Fourth Amendment’s requirement for precompliance review.
  • The Fifth Circuit rejected the Attorney General’s argument that Spirit lacked standing, noting the immediacy requirement of the statute posed a credible threat of enforcement. Even if Spirit had time to respond, the Attorney General retained the power to impose penalties at any time, rendering the statutory discretion insufficient. Under Patel, a statute’s constitutionality must be evaluated in terms of what it authorizes, not how it is selectively enforced. As such, the court concluded Spirit had standing to raise a facial challenge, especially given the Attorney General’s inconsistent litigation stances.
  • The court also rejected the argument that post-compliance penalty proceedings constituted “precompliance review.” Precompliance means the ability to challenge a subpoena or demand before deciding whether to comply, not afterward under threat of penalty. Prior Texas cases cited by the Attorney General were either outdated or irrelevant, failing to demonstrate meaningful precompliance safeguards. The Fifth Circuit emphasized that forcing businesses to risk dissolution or arrest to obtain review contradicts Fourth Amendment precedent from Camara and See v. City of Seattle.
  • Ultimately, the Fifth Circuit recognized that the Texas Supreme Court’s recent clarification in Annunciation House harmonized the RTE statute with Fourth Amendment requirements. The Court affirmed that Rule 176.6 provides a valid precompliance review process and that the statute’s “immediacy” requirement must yield to constitutional protections. Consequently, the Fifth Circuit vacated the lower court’s judgment and remanded for proceedings consistent with the updated interpretation of Texas law.

• Trabucco v. Rivera, 24-60383, appeal from N.D. Miss.
  • Ramirez, J. (Wiener, Douglas, Ramirez), qualified immunity
  • Affirming judgment that officer was entitled to qualified immunity from plaintiff’s excessive force claim.
  • In July 2021, a confrontation occurred between Officer Rivera and Trabucco at a Mississippi gas station, beginning with a brief verbal exchange and escalating into a physical altercation. Conflicting accounts were presented at trial: Trabucco claimed Rivera abruptly grabbed and tackled him without provocation, while Rivera testified that Trabucco resisted efforts to obtain his license and attempted to flee. Surveillance footage captured parts of the incident, including Rivera tasing Trabucco while he was kneeling and yelling that he had done nothing wrong. Trabucco was arrested and later sued Rivera under 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment.
  • The case proceeded to a jury trial, where the jury concluded that although Rivera had used excessive force, he was nevertheless entitled to qualified immunity. Trabucco moved for judgment as a matter of law or a new trial, arguing that his procedural rights were preserved by re-urging his motion for summary judgment at trial. The district court rejected Rivera’s waiver argument but denied Trabucco’s motion, finding the jury’s resolution of disputed facts decisive. On appeal, the Fifth Circuit considered whether Trabucco’s procedural steps sufficed under Rule 50 and whether the evidence could support the jury’s verdict.
  • The appellate court upheld the district court’s ruling, determining that while Trabucco’s procedural actions were sufficient to preserve appellate review, the jury had a legally sufficient evidentiary basis to find in Rivera’s favor. The court found Rivera’s use of force distinguishable from precedents like Trammell and Hanks, noting that Rivera’s actions followed escalating resistance, verbal commands, and uncertainty about Trabucco’s intentions. Qualified immunity was appropriate because existing precedent had not clearly prohibited Rivera’s conduct under the circumstances.
  • The court also rejected Trabucco’s challenges to the jury instructions and the denial of a new trial. It found no abuse of discretion in the inclusion of language from Salazar v. Molina or in the omission of Trabucco’s proposed instructions, which were either redundant or unsupported by the record. Trabucco’s argument that the verdict was inconsistent was likewise unpersuasive; the evidence allowed the jury to conclude that Rivera made a reasonable mistake under pressure. Accordingly, the Fifth Circuit affirmed the district court’s judgment.

Unpublished decisions

• Sexton v. Malone, 24-20568, appeal from S.D. Tex.
  • per curiam (Smith, Graves, Enhelhardt), sec. 1983
  • Vacating district court’s unexplained order dismissing pro se case, and remanding for further proceedings.

• U.S. v. Mascarenas-Jaramillo, 24-40829, appeal from S.D. Tex.
  • per curiam (Stewart, Ho, Ramirez), criminal, sentence reduction
  • Dismissing as frivolous appeal from denial of motion for sentence reduction.

• U.S. v. Felix, 24-50641, appeal from W.D. Tex.
  • per curiam (Barksdale, Stewart, Ramirez), criminal, sentencing
  • Affirming 87-month sentence on conviction of possession with intent to distribute a mixture or substance containing a detectable amount of cocaine.

• Okorie v. Citizens Financial Group, Inc., 25-60048, appeal from S.D. Miss.
  • per curiam (Davis, Smith, Higginson), bankruptcy. appellate jurisdiction
  • Dismissing appeal of district court’s order denying leave to appeal a bankruptcy court’s interlocutory ruling “[b]ecause both rulings at bar are definitionally nonfinal[.]”

• Davis v. Guerrero, 24-70008, appeal from W.D. Tex.
  • per curiam (Smith, Graves, Engelhardt), habeas corpus
  • Granting certificate of appealability from district court order denying sec. 2254 petition for capital inmate on (1) claim that admission in punishment retrial of evidence that the petitioner had converted to Satanism, and (2) claim of ineffectiveness of counsel based on omitted mitigation evidence consisting of (a) a history of mental, physical, and sexual abuse by his father and family “friends”; (b) a history of depression, self-mutilation, and suicide attempts; (c) sexual abuse of Davis’s brother by Davis’s father; (d) a history of parental neglect, abandonment, and alcoholism; (e) childhood protective services involvement with Davis’s family; and (f) Davis’s father’s criminal history.