Take the Fifth

Designated for publication

• Bruckner Truck Sales, Inc. v. Guzman, 24-10377, appeal from N.D. Tex.
  • Ho, J. (King, Ho, Ramirez), CARES Act, administrative law
  • Affirming district court’s dismissal of plaintiff’s claim for forgiveness of CARES Act paycheck protection program loan for which plaintiff had not been eligible to begin with.
  • The Paycheck Protection Program (PPP), created by Congress under the CARES Act during the COVID-19 pandemic, provided guaranteed loans to small businesses to help maintain payroll during government-imposed economic shutdowns. These loans could be forgiven if specific conditions were met. In the case of Bruckner Truck Sales, the company received a $10 million PPP loan, but the Small Business Administration (SBA) later determined it was ineligible for the loan. Bruckner conceded its ineligibility but sought forgiveness for the loan, arguing that the loan, despite its ineligibility, should still be forgiven under the program. The district court rejected this argument, affirming that the CARES Act only allows forgiveness for loans issued to eligible recipients.
  • Bruckner raised several alternative arguments for reversal, but none were successful. It argued that the SBA’s reliance on an Interim Final Rule (IFR) to deny forgiveness was retroactive and unconstitutional, but the court ruled that the IFR merely clarified the statute and was not retroactive. Additionally, Bruckner challenged the SBA’s decision under the Chenery doctrine and the Loper Bright Enterprises decision, claiming procedural issues with how the agency interpreted the law. However, the court upheld the district court’s decision, asserting that the text of the CARES Act does not authorize forgiveness for loans issued to ineligible borrowers, affirming the ruling against Bruckner.

• U.S. v. Chicol-Najarro, 24-20424, appeal from S.D. Tex.
  • per curiam (Elrod, Duncan, Engelhardt), criminal, sentencing
  • Vacating sentence where written supervised release condition conflicted with orally pronounced sentence, and remanding for entry of written judgment that comports with oral pronouncement.
  • Emil Bon Chicol-Najarro challenged the report-upon-reentry condition of his supervised release, arguing that it conflicted with the district court’s oral pronouncement. Although the condition was recommended in the presentence investigation report, it was not orally addressed by the court during sentencing. The Fifth Circuit found that the condition was not mandatory and should have been pronounced in court to provide Chicol-Najarro with an opportunity to object. The discrepancy between the court’s oral pronouncement and the written judgment created a conflict, as the written judgment imposed additional restrictions not discussed during sentencing. As a result, the court vacated the report-upon-reentry condition and remanded the case for the judgment to align with the oral pronouncement.

• U.S. v. Quezada-Atayde, 24-20570, appeal from S.D. Tex.
  • Elrod, C.J. (Elrod, Higginson, Ramirez), criminal, sentencing
  • Affirming sentence upon finding no conflict between orally pronounced sentence conditions and written judgment.
  • Cesar Quezada-Atayde appealed the special conditions of his supervised release, arguing that they conflicted with the oral pronouncement made at sentencing. The district court had included conditions in the written judgment that required Quezada-Atayde to report to immigration authorities and follow deportation procedures if applicable, but these conditions were not verbally recited at sentencing. However, the court had confirmed that Quezada-Atayde reviewed the Presentence Investigation Report (PSR) with counsel and had the opportunity to object, though he did not raise concerns about the special conditions at that time. The Fifth Circuit affirmed the district court’s judgment, concluding that the oral pronouncement was sufficient and there was no conflict with the written judgment, as Quezada-Atayde had ample notice and opportunity to object.

• U.S. v. Morgan, 24-30561, appeal from W.D. La.
  • Willett, J. (Wiener, Willett, Ho), criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon.
  • In this case, John Wayne Morgan, Jr. was convicted under 18 U.S.C. § 922(g)(1) for being a felon in possession of firearms after police discovered several firearms in a vehicle he was in. Morgan, who had a prior felony conviction for illegal use of a weapon stemming from a drive-by shooting, challenged the constitutionality of § 922(g)(1) both facially and as applied to him. The district court denied his motion to dismiss, ruling that convicted felons are not among “the people” protected by the Second Amendment and that the statute was consistent with historical firearm regulation traditions. Morgan pleaded guilty but preserved his right to appeal the constitutional challenge.
  • On appeal, Morgan renewed his challenge to the statute, arguing that it violated his Second Amendment rights. The court first acknowledged that Morgan’s facial challenge was foreclosed by precedent, and then examined his as-applied challenge. The court reviewed the relevant legal framework set forth by New York State Rifle & Pistol Ass’n v. Bruen, which requires determining whether a law burdens a Second Amendment right and if so, whether it is consistent with historical firearm regulation traditions. The court found that Morgan’s conviction for illegal use of a weapon, which qualified as a felony under § 922(g)(1), fell within the scope of the Second Amendment but was justified by historical regulations, particularly early “going armed” laws that prohibited carrying firearms to threaten others or disrupt public order.
  • In its analysis, the court emphasized that § 922(g)(1) was not only relevantly similar to these historical laws but also properly applied to Morgan given the nature of his prior felony conviction, which involved violent conduct with a firearm. The court rejected Morgan’s argument that the statute was overly broad and found the law consistent with the nation’s historical tradition of disarming individuals who pose a danger to public safety. Therefore, the court affirmed Morgan’s conviction, concluding that the statute as applied to him was constitutional and aligned with the historical precedent supporting firearm restrictions for individuals with felony convictions.

• CAM Logistics, L.L.C. v. Pratt Industries, Inc., 24-30806, appeal from W.D. La.
  • Douglas, J. (King, Smith, Douglas), breach of contract
  • Affirming summary judgment dismissal of plaintiff’s breach of contract claims.
  • CAM Logistics, L.L.C. (CAM) sued Rockwall Corrugating L.L.C. (Rockwall), alleging breach of contract and detrimental reliance regarding warehousing services. The dispute centered around negotiations for warehousing services that started in 2017 and continued into 2020. CAM and Rockwall exchanged multiple drafts of a proposed contract, but the agreement was never signed by either party. CAM began providing warehousing services in January 2018, invoicing Rockwall monthly, but the terms of the contract, including its duration, remained unresolved.
  • In December 2017, CAM submitted a draft agreement for warehousing services, which Rockwall’s legal team reviewed and proposed revisions to in April 2018. Despite ongoing negotiations and CAM beginning the services, no written contract was finalized, and both parties continued to operate under the assumption that a formal agreement would be executed. CAM moved for partial summary judgment, claiming a breach of contract, but the district court ruled that the lack of a signed agreement meant no formal contract existed between the parties.
  • Rockwall filed a motion for summary judgment, arguing that the oral agreement did not specify a fixed term, and the actions of both parties—specifically CAM’s provision of services and Rockwall’s monthly payments—did not constitute the formation of a three-year contract. The district court granted Rockwall’s motion, determining that the parties had only formed an oral agreement without a fixed term. It also found that CAM’s detrimental reliance claim failed because there was no firm representation by Rockwall of a fixed contract term.
  • On appeal, CAM argued that the district court erred in applying the Louisiana Civil Code’s presumption that an agreement must be written to be binding. CAM also contested the district court’s rejection of its claims for confirmation and ratification by performance, and its detrimental reliance argument. The Fifth Circuit affirmed the district court’s decision, concluding that there was no written or binding contract, and that CAM’s reliance on an unexecuted agreement was unreasonable. Thus, the court upheld the dismissal of CAM’s breach of contract and detrimental reliance claims.

• Wood v. Bexar County, 24-51006, appeal from W.D. Tex.
  • Engelhardt, J. (Elrod, Duncan, Engelhardt), qualified immunity, municipal liability
  • Affirming summary judgment in favor of arresting officers and county on claims arising from traffic stop and arrest of plaintiff for driving while intoxicated.
  • Amanda Wood was arrested for driving while intoxicated (DWI) by Deputy Joe Gereb after a traffic stop on August 4, 2019. Wood was initially stopped for speeding and lane violations, and Deputy Gereb detected a strong odor of alcohol when approaching her vehicle. Although Wood denied consuming alcohol, her speech was slurred, and she displayed signs of intoxication. She refused to cooperate with the field sobriety tests, leading to her arrest. Wood’s version of the events differs, claiming she had not been drinking and that Deputy Gereb acted aggressively toward her. She also accused him of unlawfully arresting her and deleting her phone’s recording of the incident.
  • After Wood was placed in the back of the patrol car, Deputy Bible arrived and continued the investigation. The officers noted Wood’s erratic behavior and refusal to perform sobriety tests, and she exhibited further signs of intoxication. Despite claiming to be sober, Wood’s actions and speech were incoherent, and the deputies ultimately arrested her for DWI. At the jail, officers used force to restrain Wood for a blood draw, which was done under a warrant. A toxicology report later revealed Wood’s blood alcohol content (BAC) to be 0.019, with an estimated BAC of 0.05 to 0.11 at the time of driving.
  • Wood filed a lawsuit against Deputy Gereb and Bexar County, alleging violations of her constitutional rights, including false arrest, retaliation for filming the officers, malicious prosecution, and excessive force. The district court granted summary judgment for the defendants, ruling that Deputy Gereb was entitled to qualified immunity. Wood’s claims were based on the argument that the arrest was unlawful, but the court found there was probable cause for her arrest given her behavior, the smell of alcohol, and her refusal to submit to a field sobriety test. The court also ruled that there was no evidence of retaliatory arrest or malicious prosecution.
  • On appeal, the Fifth Circuit affirmed the district court’s ruling. It determined that Wood’s arrest was based on probable cause, as the totality of the circumstances, including her intoxication signs and refusal to cooperate, supported the decision. The court also upheld the dismissal of her excessive force claims, concluding that the force used during her arrest and blood draw was not unreasonable under the circumstances. Finally, the court rejected Wood’s claims against Bexar County under Monell, as no constitutional violations had been established. The judgment of the district court was therefore affirmed.

• Shenzhen IVPS Technology Co. v. U.S. Food & Drug Administration, 24-60032, petition for review of FDA decision
  • Southwick, J. (Wiener, Stewart, Southwick), administrative law
  • Denying petition to review FDA’s denial of application for electronic nicotine delivery system.
  • In 2020, Shenzhen IVPS Technology Company submitted applications to the FDA for marketing its open-system electronic nicotine delivery systems (ENDS), including devices, replacement pods, and atomizers. These devices, designed to allow users to customize their vaping experience, were intended to offer a lower-risk alternative to combustible cigarettes. IVPS provided extensive product characterization data, toxicology studies, and health risk assessments to support their claim that these products were appropriate for the protection of public health. However, the FDA denied these applications, citing deficiencies in the data regarding abuse liability, and ultimately concluded that the risks associated with these products outweighed any potential benefits.
  • The FDA’s denial was based on several deficiencies, including insufficient data on the abuse liability of the products. While IVPS had provided clinical study results comparing the abuse liability of their products to that of combustible cigarettes under prescribed conditions, the FDA found that the application lacked data on actual-use conditions, where higher nicotine concentrations were observed. The FDA emphasized that understanding the abuse liability—specifically the potential for addiction and misuse—was crucial for determining whether the products would be appropriate for public health. Furthermore, the FDA rejected IVPS’s proposed label for the products, stating that without consumer comprehension studies, it could not assess whether the warning would be effective.
  • IVPS contested the denial, arguing that the FDA’s decision was arbitrary and capricious, as it failed to engage in a holistic risk-benefit analysis as required by the Tobacco Control Act (TCA). IVPS also claimed that the FDA’s treatment of its application was inconsistent with past practices, noting that previous applicants had been allowed multiple rounds of feedback and deficiency letters. The FDA defended its actions, asserting that it had adequately explained why the lack of abuse liability data was critical to its public health analysis. Additionally, the FDA’s decision to issue a single deficiency letter was in line with its revised policy to streamline the review process for the high volume of ENDS applications.
  • Ultimately, the Fifth Circuit upheld the FDA’s denial, concluding that the agency’s decision was not arbitrary or capricious. The court emphasized that the FDA had provided a sufficient explanation for its denial, particularly regarding the lack of data on abuse liability. Since this deficiency alone was enough to sustain the denial, the court did not need to address the other reasons for the FDA’s decision. As a result, IVPS’s petition for review was denied, and the FDA’s denial order remained in effect.

• Wood v. Patton, 25-70004, appeal from W.D. Tex.
  • Smith, J. (Elrod, Smith, Engelhardt), sec. 1983
  • On remand from U.S. Supreme Court after cert was granted, the original panel decision affirming a dismissal of plaintiff capital inmate’s challenge to due process viability of Texas’s post-conviction DNA testing statute was vacated and remanded, the panel held that the plaintiff had standing but again affirmed the dismissal of plaintiff’s challenge under 12(b)(6).
  • David Wood, a Texas death row inmate, filed two 42 U.S.C. § 1983 claims, arguing that Texas’s post-conviction DNA testing statute violated his due process rights. Initially, the district court dismissed both claims, ruling that Wood lacked standing for one and that the other failed on the merits, and the Fifth Circuit panel had affirmed. The Supreme Court granted certiorari, vacated the previous judgment, and remanded for reconsideration in light of a new decision. After reconsidering under the new framework, the court concluded that Wood had standing to pursue both claims but ultimately affirmed the dismissal of the case under Rule 12(b)(6), determining that his allegations did not state a plausible claim for relief.
  • Wood’s case involves a long history of litigation following his 1992 conviction for capital murder. After filing multiple motions for DNA testing of various evidence, Wood contended that the Texas Court of Criminal Appeals (CCA) had consistently denied his requests, effectively rendering the post-conviction DNA testing right illusory. He argued that the CCA’s interpretation of the state statute regarding unreasonable delays in testing violated his due process rights. The district court had dismissed his claims, and the appeals court affirmed, citing that Wood failed to allege facts showing that the CCA’s denials were due process violations.
  • In his second claim, Wood argued that the CCA had applied a novel construction of the statute’s unreasonable-delay provision, making it impossible for him to predict that he would be denied testing based on his execution status or ongoing litigation. However, the court rejected this argument, pointing out that the CCA had not applied a new rule and had previously clarified that the decision to grant DNA testing depends on a variety of factors, not just the presence or absence of an execution date. The court concluded that Wood had not shown that the CCA’s construction of the statute was unforeseeable or inconsistent with prior decisions, affirming the dismissal of his claims.

Unpublished decisions

• Strong v. United Petroleum Transports, Inc., 24-10701, appeal from N.D. Tex.
  • per curiam (Stewart, Clement, Wilson), employment discrimination
  • Affirming summary judgment dismissal of plaintiff’s racial discrimination claims against former employer.

• Lane v. City of Houston, 24-20490, appeal from S.D. Tex.
  • per curiam (King, Smith, Douglas), standing, sec. 1983, Title VI
  • Affirming dismissal for lack of standing plaintiff’s claims that the City of Houston had a racially discriminatory policing/pursuit policy.

• U.S. v. Bevers, 24-30266, appeal from W.D. La.
  • per curiam (Elrod, Duncan, Engelhardt), criminal, restitution
  • Affirming restitution award as to one victim of defendant’s production and possession of child pornography, but vacating and remanding for reconsideration restitution awards as to twelve other victims.

• Huffman v. Activision Publishing, Inc., 24-40072, appeal from E.D. Tex.
  • Richman, J. (Elrod, Richman, Oldham), Oldham, J., dissenting; copyright, attorneys’ fees
  • Affirming denial of attorneys’ fees to defendants after they prevailed on plaintiff’s copyright infringement claims, on finding that claims had not been objectively unreasonable.
  • Judge Oldham dissented. He would find that the plaintiff’s claims were objectively unreasonable because he made no proof that the defendants had access to the poster containing plaintiff’s intellectual property prior to making their own creation. Additionally, Judge Oldham opined, “Activision argued that it deserved compensation for spending millions of dollars to successfully defend a baseless suit seeking $32 million. And it argued that awarding fees would deter other baseless suits against the videogame giant. I wholeheartedly agree. The majority opinion (like the district court) treats fee-shifting as the exception rather than the rule. In my view, that is erroneous.

• Baughman v. Bowman, 24-40286, appeal from E.D. Tex.
  • per curiam (Wiener, Willett Ho), prisoner suit
  • Affirming dismissal of Texas state prisoner’s Constitutional, ADA, and RA claims.

• U.S. v. Guerrero-Robledo, 24-40785, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Wells v. Lottery.com Inc., 25-50037, appeal from W.D. Tex.
  • per curiam (Stewart, Clement, Wilson), Fair Labor Standards Act
  • Affirming dismissal of FLSA minimum wage claim.

• Doe v. Kerrville Independent School District, 24-50394, appeal from W.D. Tex.
  • per curiam (Stewart, Clement, Wilson), Title IX
  • Affirming dismissal of former student’s Title IX sexual harassment and sexual abuse claim against school district.

• U.S. v. Smith, 23-50619, appeal from W.D. Tex.
  • per curiam (Stewart, Clement, Wilson), criminal, guilty plea
  • Affirming denial of motion to vacate conviction, on basis of guilty plea agreement’s waiver of right to appeal or collaterally attack judgment.

• Minera v. Bondi, 24-60455, petition for review of BIA order
  • per curiam (Stewart, Clement, Wilson), immigration
  • Denying in part and dismissing in part Salvadoran citizen’s petition to review BIA order denying motion to reconsider his removal order.

• Greene v. Entergy Operations, Inc., 24-60603, appeal from S.D. Miss.
  • per curiam (Wiener, Willett, Ho), employment
  • Affirming summary judgment dismissing plaintiff’s claim arising from his dismissal from defendant’s nuclear power plant for failure of a drug test.