July 16, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • Benavides v. Nunes, 24-20445, appeal from S.D. Tex.
    • Guidry, J. (Elrod, Enhelhardt, Guidry, by designation), qualified immunity
    • Dismissing appeal of denial of qualified immunity dismissal as an interlocutory appeal.
    • Deputy Jose Nunez responded to a 911 call about a possible home invasion but ended up shooting Stephen Benavides, the unarmed father of the homeowner, upon arrival. Body camera footage showed Nunez moving his firearm from one hand to the other before it discharged as Benavides opened the door. Although Nunez claimed the shooting was accidental, Benavides filed a § 1983 excessive force lawsuit. The district court denied Nunez’s motion for summary judgment based on qualified immunity, citing a genuine dispute of fact as to whether the shooting was intentional or accidental. Because the facts could support either party’s version, the court found that qualified immunity could not be decided as a matter of law.
    • On appeal, the Fifth Circuit dismissed Nunez’s interlocutory appeal for lack of jurisdiction. The court reiterated that appellate review in qualified immunity cases cannot address the genuineness of factual disputes—only their materiality. Since Nunez challenged the district court’s finding of a genuine factual dispute (but not the legal relevance of that dispute), the court lacked authority to overturn the decision. The court emphasized that factual determinations about whether the shooting was intentional must be resolved by a jury.
  • Swift v. Commissioner of Internal Revenue, 24-60270, appeal from Tax Ct.
    • King, J. (King, Jones, Oldham), tax law
    • Affirming Tax Court’s determination that IRS properly issued notice of deficiency and penalties.
    • Dr. Bernard Swift and his wife claimed tax deductions for premiums their medical practice paid to captive insurance companies they formed. These companies were structured under a “micro-captive” model, which can allow businesses to both deduct premium payments and avoid tax on the insurance income, provided the arrangement qualifies as actual insurance. Swift’s companies issued policies to his clinic and participated in reinsurance pools managed by their legal adviser, Celia Clark. From 2012–2015, Swift’s clinic paid nearly $6 million in premiums to these entities but filed only three insurance claims—two of which were nonmedical, including one to cover an IRS audit. The IRS disallowed the deductions and imposed accuracy-related penalties, arguing the arrangement was not genuine insurance.
    • The tax court upheld the IRS’s findings, concluding the arrangements failed to meet the legal definition of insurance. Specifically, the court found that Swift’s captives did not achieve sufficient risk distribution, a necessary component of true insurance, because they lacked enough independent risks and relied on contrived reinsurance pools that did not genuinely spread risk. Swift’s argument that physician-patient interactions, rather than the number of physicians, should be counted as separate risks was rejected. The court also concluded that the reinsurance pools had circular flows of funds, non-arm’s-length contracts, and premiums set to hit tax-advantaged targets rather than reflect actual risk, further undermining the claim that the arrangement constituted legitimate insurance.
    • On appeal, the Fifth Circuit affirmed, finding no error in the tax court’s conclusion that the arrangements lacked sufficient risk distribution and did not qualify as insurance. The court also rejected Swift’s alternative argument that he was entitled to rely on the reinsurance pools for risk distribution, agreeing with the tax court that the pools were designed more for tax avoidance than legitimate risk management. The court emphasized that neither the captives’ direct policies nor their participation in the pools met the substantive requirements for insurance, and therefore the premium deductions were improper under the Internal Revenue Code.
    • Finally, the Fifth Circuit also affirmed the imposition of penalties. The court ruled that supervisory approval for the penalties was timely under the statutory requirement of § 6751(b), aligning with other circuit courts that interpret the statute to require approval before assessment or loss of discretion. The court further found that Swift lacked a reasonable cause defense because his reliance on Clark—who had a conflict of interest as a promoter of the captive arrangement—was not objectively reasonable. His reliance on other advisers lacked evidentiary support. The court also rejected the substantial authority defense, finding the IRS letter rulings Swift cited were not applicable to the flawed structure and execution of his specific captive insurance arrangement.

Unpublished decisions

  • U.S. v. Reyes-Ayala, 25-10230, appeal from N.D. Tex.
    • per curiam (Richman, Southwick, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Robinson, 24-10493, appeal from N.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal
    • Affirming convictions of possession of a firearm by a felon and possession of a firearm in furtherance of a drug trafficking offense.
  • U.S. v. Fay, 24-10986, appeal from N.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Gardner v. Gary Sinise Foundation, 24-40098, appeal from E.D. Tex.
    • per curiam (Higginbotham, Stewart, Haynes), Rooker-Feldman doctrine
    • Remanding for district court to conduct Rooker-Feldman inquiry.
  • U.S. v. Asemota, 24-40666, appeal from E.D. Tex.
    • per curiam (Barksdale, Stewart, Ramirez), criminal, guilty plea, restitution
    • Affirming district court’s acceptance of defendant’s guilty plea, and imposition of $40,000 restitution award.
  • U.S. v. Collazo-Cedillo, 24-40784, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Valle-Ramirez, 25-50135, appeal from W.D. Tex.
    • per curiam (Jones, Richman, Southwick), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Mendoza, 25-50234, appeal from W.D. Tex.
    • per curiam (Stewart, Willett, Wilson), criminal
    • Dismissing as frivolous appeal from denial of petition for writ of audita querela.
  • U.S. v. Dorsey, 23-50794, appeal from W.D. Tex.
    • per curiam (Richman, Southwick, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Spinks v. Linthicum, 24-50965, appeal from W.D. Tex.
    • per curiam (Elrod, Higginson, Ramirez), prisoner suit
    • Affirming denial of injunction in Texas state prisoner’s sec. 1983 action.
  • Carrillo-Arriaga v. Bondi, 25-60005, petition for review of BIA order
    • per curiam (Richman, Southwick, Willett), immigration
    • Denying Colombian citizen’s petition for review of BIA’s dismissing his appeal from an order of immigration judge (IJ) denying asylum, withholding of removal, and protection under the Convention Against Torture.
  • Rodriguez v. Bondi, 24-60459, petition for review of BIA order
    • per curiam (Southwick, Oldham, Ramirez), immigration
    • Denying Mexican citizen’s petition for review of BIA’s final order of removal.
  • U.S. v. Anderson, 24-60481, appeal from N.D. Miss.
    • per curiam (Barksdale, Haynes, Wilson), criminal, sentencing
    • Affirming 360-month sentence on conviction of production of child sexual exploitative material.