Take the Fifth

Designated for publication

• Amstutz v. Harris County, 24-20286, appeal from S.D. Tex.
  • Higginson, J. (Graves, Higginson, Wilson), Age Discrimination in Employment Act, sec. 1983
  • Affirming dismissal of ADEA claim for failure to exhaust and to respond to a timeliness challenge, and dismissal of sec. 1983 claim for failure to plead a protected property interest in at-will employment.
  • Jose E. Amstutz, a former Harris County Precinct 6 police officer, sued Harris County and Constable Sylvia Trevino under the Age Discrimination in Employment Act (ADEA) and 42 U.S.C. § 1983 after being terminated in July 2022. Amstutz’s termination followed a domestic abuse complaint filed by his wife, leading to an internal investigation that concluded he violated several departmental policies, including failure to report multiple emergency calls from his wife. He was terminated on July 26, 2022, and his discharge was reported to the Texas Commission on Law Enforcement as a “General Discharge.” A subsequent administrative proceeding overturned this designation, finding no policy violations and ordering the discharge changed to “Honorable.” Amstutz later filed an EEOC charge, received a right-to-sue notice, and pursued claims alleging discrimination and constitutional violations, contending that Trevino’s bias against middle-aged men motivated his termination.
  • The district court dismissed Amstutz’s ADEA claim due to his failure to exhaust administrative remedies and adequately address a timeliness challenge, and dismissed his § 1983 claims for lack of a protected property interest in his at-will employment. On appeal, the Fifth Circuit affirmed, finding that Amstutz did not preserve his ADEA arguments and failed to show that any due process rights were violated, as Texas law provides no property interest for at-will employees. His reliance on assurances from a superior and alleged misrepresentations by Trevino did not establish a constitutional entitlement to continued employment. Furthermore, his Monell claim against Harris County failed because he did not allege a valid constitutional violation to underpin municipal liability.

• Sampy v. Rabb, 24-30121, appeal from W.D. La.
  • Jones, J. (Higginbotham, Jones, Southwick), sec. 1983
  • Affirming dismissal of plaintiff’s excessive force claim as Heck barred.
  • Raynaldo Sampy Jr. was convicted of battery of a police officer in Lafayette City Court after he kicked Officer Rabb during his arrest. He subsequently filed a § 1983 lawsuit alleging that several officers used excessive force, failed to intervene, and retaliated against him for protesting his treatment. Sampy claimed he was forcibly removed from his vehicle, handcuffed, and thrown to the ground despite not resisting, and alleged that the officers’ conduct violated his Fourth and First Amendment rights. The district court dismissed most of his claims under the doctrine established in Heck v. Humphrey, which bars claims that would undermine the validity of a criminal conviction, except for one excessive force claim relating to a later restraint. A jury ruled against Sampy on that surviving claim, and he appealed the dismissal of his other claims.
  • The Fifth Circuit affirmed the district court’s ruling, holding that Sampy’s claims were barred by Heck because success on his excessive force allegations would necessarily imply the invalidity of his battery conviction. Sampy failed to show that the alleged excessive force occurred after his own resistance ceased, as the City Court had found the kick and the officers’ takedown maneuver occurred simultaneously. Furthermore, his complaint contradicted the factual findings underlying his conviction, such as his assertion that he “did not resist,” which conflicted with the City Court’s reliance on body camera footage. Because his narrative implied that he committed no wrongdoing during the arrest, all claims—including bystander liability and First Amendment retaliation—were deemed barred by Heck, and the district court’s judgment was upheld.

• U.S. v. Wilson, 23-30777, appeal from E.D. La.
  • Oldham, J. (Graves, Engelhardt, Oldham), Graves, J., dissenting in part; criminal, sentencing, search and seizure
  • Affirming conviction on drug and firearm charges, upholding denial of motion to suppress fruits of Terry stop.
  • The Fifth Circuit Court of Appeals considered whether police may conduct a Terry stop based solely on the fact that a person is carrying a firearm. The court answered “no” but nevertheless upheld the stop of Damion Wilson on other grounds and affirmed his conviction and sentence. Federal agents stopped Wilson in March 2022 after noticing a bulge in his waistband that appeared to be a firearm. Wilson admitted he did not have a concealed carry permit. While not initially under arrest, Wilson was later arrested by local police for unlawful firearm possession, which led to the discovery of marijuana in his backpack and apartment. A federal grand jury indicted him on drug, firearm, and false statement charges, resulting in a jury conviction and an 87-month prison sentence. Wilson appealed, challenging the legality of the stop, the sufficiency of evidence, evidentiary rulings, prosecutorial comments, and his sentencing.
  • The court first addressed Wilson’s motion to suppress, reviewing factual findings for clear error and legal conclusions de novo. It emphasized that under the Fourth Amendment, searches and seizures require individualized suspicion, drawing on historical precedents like the colonial-era opposition to general warrants and writs of assistance. The court rejected the notion that simply carrying a firearm justifies a Terry stop, comparing it to presuming that all drivers are unlicensed without evidence. The district court’s reliance on a “presumption of illegality” for carrying firearms in Louisiana was deemed inconsistent with both constitutional tradition and Terry doctrine, which requires reasonable suspicion based on the totality of circumstances.
  • Nevertheless, the Fifth Circuit found that the stop was valid because officers had reasonable suspicion Wilson was connected to fugitive Malik Fernandez and possible drug trafficking. Officers had been informed by multiple witnesses that Wilson and Fernandez were frequently seen together, including at Wilson’s apartment complex. Combined with Wilson’s known criminal history and his proximity to criminal activity, these factors supported the stop independently of firearm possession. The court held that once the officers observed a bulge suggesting a gun, a protective frisk was permissible under established precedent.
  • Wilson’s additional appellate challenges also failed under plain-error review. He argued that there was insufficient evidence to support his false statement conviction, but the court found the government’s evidence—Instagram photos and testimony connecting him to Fernandez—was more than sufficient for a reasonable jury to find he lied about not seeing Fernandez for six years. The court also rejected his challenge to Deputy Atkins’ lay opinion identifying him in photos, noting that such testimony was based on firsthand familiarity and fell well within the bounds of Rule 701. Similarly, the prosecutor’s remarks during closing arguments, while forceful, were supported by record evidence and did not improperly prejudice the jury.
  • Finally, the court addressed Wilson’s claim that the district court incorrectly applied the obstruction-of-justice Guideline (§ 2J1.2) instead of the fraud Guideline (§ 2B1.1) when calculating his sentence. The Fifth Circuit concluded that the cross-reference to § 2J1.2 was appropriate because Wilson’s false statements obstructed the investigation into a fugitive and drug trafficking crimes. Even if the application of § 2J1.2 were questionable, there was no “plain error,” as no binding precedent prohibited the court’s approach. The Fifth Circuit therefore affirmed Wilson’s conviction and 87-month sentence in full.
  • Judge Graves dissented in part. While he agrees with the majority’s decision to uphold Wilson’s conviction, Judge Graves critiqued the majority’s extensive discussion on whether a Terry stop can be justified solely by the presence of a firearm. He emphasized that the officers had sufficient reasonable suspicion for the stop based on specific facts suggesting possible criminal activity—such as harboring a fugitive or drug trafficking—beyond Wilson’s possession of a firearm. Therefore, he deemed unnecessary and irrelevant to resolving this case the detailed historical analysis about firearm-based stops.
  • Further, Judge Graves dissents from the majority’s decision to affirm Wilson’s sentence, arguing that the district court improperly applied the obstruction-of-justice Guideline (U.S.S.G. § 2J1.2) through a cross-reference in the fraud-and-deceit Guideline (U.S.S.G. § 2B1.1(c)(3)) for Wilson’s false-statement conviction under 18 U.S.C. § 1001(a)(2). Citing prior Fifth Circuit precedents—United States v. Arturo Garcia and United States v. Griego—Judge Graves asserts that the cross-reference can only apply if the indictment itself alleges the elements of another offense, which Wilson’s did not. This error, which increased Wilson’s sentencing range and ultimately his sentence, is clear and affects his substantial rights. Judge Graves concludes that this mistake warrants correction under plain-error review.

• Wilson v. Centene Management Co., 24-50044, appeal from W.D. Tex.
  • Southwick, J. (Dennis, Southwick, Engelhardt), standing, class action
  • Vacating denial of class certification on standing grounds, and remanding for further proceedings.
  • The Fifth Circuit reviewed an appeal concerning whether the district court applied the correct test for determining Article III standing at the class-certification stage. The plaintiffs alleged that Superior HealthPlan’s provider directories for its “Ambetter” insurance plans were materially inaccurate, leading them and other policyholders to pay inflated premiums for coverage that did not offer adequate provider access. The district court denied class certification, concluding that the plaintiffs lacked standing because they had failed to establish a concrete injury-in-fact. The appellate court found that the district court did not apply either of the two recognized approaches for evaluating standing in the class-certification context and vacated the decision.
  • The plaintiffs, Cynthia Wilson and Erin and Nicholas Angelo, purchased Ambetter plans after reviewing provider directories that allegedly misrepresented in-network options. Wilson, a breast cancer patient, was unable to find any listed in-network physicians willing to accept her insurance and had to seek out-of-network care. The Angelos, facing a high-risk pregnancy, discovered that the specialist they relied upon had stopped accepting Ambetter, forcing them to pay substantial out-of-pocket costs and engage in a two-year dispute over neonatal care expenses. They filed a class action alleging breach of contract and other claims, asserting that the inaccurate directories caused systematic overcharges.
  • At the class-certification stage, the plaintiffs presented an expert report asserting that nearly half of Ambetter’s listed providers were inactive network participants, and that premium rates were inflated due to overstated network breadth. Superior challenged both the plaintiffs’ theory and their expert’s model, arguing that there was no contractual promise regarding the number of providers and that the damages theory failed to show a concrete injury. The district court sided with Superior, concluding that the plaintiffs’ “overcharge-by-fraud” theory was not adequately supported and that they failed to demonstrate an injury-in-fact.
  • On appeal, the Fifth Circuit analyzed two competing approaches to standing at the class-certification stage: the “class-certification approach,” which only requires the named plaintiffs to show individual standing, and the “standing approach,” which demands a closer match between the named plaintiffs’ injuries and those of the class. The court adopted the class-certification approach, reasoning that it maintains a clear separation between constitutional standing and Rule 23’s requirements, and avoids premature merits-based evaluations at the certification stage. The court emphasized that the district court had improperly conflated standing with merits issues by scrutinizing the expert report.
  • The Fifth Circuit concluded that the plaintiffs had alleged and presented evidence of an injury-in-fact (overpayment due to inaccurate directories), causation (traceable to Superior’s alleged misrepresentations), and redressability (through refunds if they prevail). The district court’s reliance on the expert report to reject standing was deemed improper because determining the exact amount of overcharge is a merits question, not a standing question. As a result, the appellate court vacated the denial of class certification and remanded the case for further proceedings, directing the district court to evaluate standing under the proper legal framework and then assess Rule 23 requirements.

Unpublished opinions

• U.S. v. Barrow, 24-10155, appeal from N.D. Tex.
  • per curiam (Dennis, Oldham, Douglas), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Loredo-Loredo, 25-10205, appeal from N.D. Tex.
  • per curiam (Jolly, Jones, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Johnson v. Moring, 24-30385, appeal from E.D. La.
  • per curiam (Southwick, Oldham, Ramirez), personal tort, sufficiency of evidence
  • Affirming verdict in favor of plaintiff on intentional infliction of emotional distress claim, because defendant failed to renew motion for judgment as a matter of law after the verdict.

• U.S. v. Kendall, 24-40441, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Ramirez), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Luna-Gutierrez, 24-40694, appeal from E.D. Tex.
  • per curiam (Barksdale, Stewart, Ramirez), criminal, sentencing
  • Affirming 120-month sentence on conviction of illegal reentry.

• U.S. v. Contreras, 24-50370, appeal from W.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Affirming conviction of possession of a firearm by a felon.