Take the Fifth

Designated for publication

• State of Texas v. Bondi, 24-10386, appeal from N.D. Tex.
  • Graves, J. (Graves, Higginson, Wilson), Wilson, J., dissenting; Quorum Clause
  • Reversing district court’s judgment that the Quorum Clause of the Constitution requires physical presence by members of Congress to conduct votes, and vacating permanent injunction of portions of appropriations bill that had been challenged by Texas on the basis that it had been passed under COVID-19-related rules that allowed for votes by non-physically-present members.
  • The case concerns Texas’s challenge to the validity of the Consolidated Appropriations Act of 2023, arguing that it was enacted in violation of the Constitution’s Quorum Clause. During the COVID-19 pandemic, the House adopted rules allowing proxy and remote voting, which continued into the 117th Congress. The Act passed the House with 431 votes cast, 226 of which were by proxy. Although less than a majority of Members were physically present, the Speaker Pro Tempore counted proxy votes toward the quorum under House rules. No Member formally objected to the quorum at the time. After the Act became law, Texas sued for declaratory and injunctive relief, targeting provisions including the Pregnant Workers Fairness Act (PWFA). The district court held Texas had standing for part of its challenge, concluded the enrolled-bill rule did not bar review, and ruled that the Quorum Clause required physical presence, enjoining enforcement of the PWFA against Texas.
  • On appeal, the Fifth Circuit first addressed whether the enrolled-bill rule foreclosed review. The Government argued that under Marshall Field & Co. v. Clark, once a bill is enrolled and signed, courts cannot inquire into the legislative process. But the court distinguished that line of cases, noting that those disputes involved factual uncertainty about whether an enrolled bill matched what Congress actually passed. Here, no factual dispute existed: it was undisputed that a quorum was counted based on proxy participation. Following United States v. Munoz-Flores, the court explained that while the enrolled-bill rule bars factual reexamination of legislative records, it does not insulate Congress from constitutional review. Thus, the court held the enrolled-bill rule did not prevent judicial consideration of Texas’s claim.
  • The Fifth Circuit then turned to the Quorum Clause’s meaning. Article I, Section 5, Clause 1 provides that a majority constitutes a quorum to do business. Texas contended this requires physical presence. The court rejected that argument, reasoning that the Clause’s text contains no physical-presence requirement. Citing United States v. Ballin (1892), the court emphasized that while Congress may not by its rules ignore constitutional restraints, it has wide discretion to determine how to establish a quorum. The Clause simply requires a majority’s “presence,” not necessarily physical attendance, and the Constitution leaves it to each House to choose how to measure that presence.
  • Turning to history and practice, the court observed that since the First Congress, both Houses have often proceeded under unanimous consent or similar procedures without a majority physically present. This longstanding tradition, including legislation of great importance and judicial confirmations, demonstrated that the Framers and early Congresses did not understand the Clause as imposing a physical-presence mandate. The court compared Texas’s position to rejected arguments in NLRB v. Noel Canning, where the Supreme Court held the Constitution was intended to endure and adapt to changed circumstances. By allowing broad participation during the pandemic, proxy voting furthered, rather than undermined, the Clause’s majoritarian purpose.
  • Finally, the court reasoned that the House’s proxy voting rule was reasonably related to its constitutional authority to conduct business and did not violate fundamental rights. Even if Texas’s interpretation was the more “natural” reading, it was not the only permissible one. The judiciary’s duty is to respect constitutional boundaries while recognizing Congress’s authority to set its own rules of proceedings. Concluding that the Quorum Clause does not require physical presence, the Fifth Circuit reversed the district court’s ruling and vacated the permanent injunction barring enforcement of the PWFA against Texas.
  • Judge Wilson dissented. He opines that the Quorum Clause of the Constitution requires the physical presence of a majority of Members in order for either chamber of Congress to conduct business. While the majority defers to Congress’s authority to define “presence” in its own rules, the dissent insists that the Clause’s text, original meaning, Supreme Court precedent, and two centuries of congressional practice all confirm that proxy voting cannot satisfy quorum requirements. In this case, the House of Representatives passed the Consolidated Appropriations Act of 2023 while most Members were absent and recorded only through proxy, a practice the dissent deems unconstitutional because Congress cannot redefine the Constitution’s quorum requirement “out of existence.”
  • The dissent grounds its position in United States v. Ballin (1892), which held that a quorum requires the presence of a majority, even if Congress may adopt different methods for ascertaining that fact. It distinguishes between the fact of presence—fixed by the Constitution—and the methods of determining that fact, which Congress can set by rule. Proxy voting, however, is not a method of measurement but a redefinition of presence itself, contrary to the Quorum Clause. Turning to the text and original public meaning, the dissent emphasizes that “attendance” and “absent” were understood in the Founding Era to mean physical presence, and that debates at the Constitutional Convention revealed a deliberate choice to require an actual majority of Members physically present. The Framers considered proxy voting but rejected its use for quorum purposes, in part due to British practice forbidding proxies in the House of Commons.
  • Finally, the dissent reviews Congress’s historical practices, which for over two centuries uniformly required physical presence for quorum. Although Congress has long used unanimous consent to presume a quorum unless challenged, that practice rests on an initial quorum being established by actual presence and collapses once a Member objects. By contrast, the House’s 2020 proxy-voting rule created a “quorum” composed of absent Members, something without precedent in American legislative history. Because the House lacked a constitutionally valid quorum when it passed the Consolidated Appropriations Act of 2023, the dissent concludes the Act is invalid and would grant Texas the relief it seeks.

• Norman v. Ingle, 24-20431, appeal from S.D. Tex.
  • per curiam (Higginbotham, Jones, Southwick), qualified immunity
  • Reversing judgment for plaintiff on claims that defendants violated his constitutional rights by applying excessive force, denying or delaying medical care, failing to intervene, wrongfully arresting Norman, maliciously prosecuting him, and violating his First Amendment rights; holding that qualified immunity barred plaintiff’s claims.
  • Evan Norman sued Deputies Ingle and Sutton after a March 2021 altercation at Bombshells Restaurant in which he was removed for intoxication and repeatedly shoved and struck by the deputies following verbal exchanges. The incident escalated when Norman swung at Deputy Ingle, narrowly missed, and placed him in a headlock, prompting both deputies to punch him multiple times before arresting him. Norman suffered facial fractures and other injuries, later alleging excessive force, false arrest, denial of medical care, malicious prosecution, and failure to intervene. The district court dismissed claims against Harris County and the Sheriff but denied the deputies’ motions for summary judgment, holding that genuine factual disputes precluded qualified immunity.
  • On appeal, the Fifth Circuit held it had jurisdiction to review the denial of qualified immunity, particularly given the available video evidence. Reviewing de novo, the court concluded that the Graham factors supported the deputies’ use of force, given Norman’s attempted punch and headlock. It rejected Norman’s medical care claim, noting immediate efforts by the deputies to secure medical help, and found no basis for a failure-to-intervene claim because Sutton had mere seconds to act. Norman also abandoned his false arrest, malicious prosecution, and First Amendment claims. Because no constitutional right was violated under clearly established law, the court reversed the district court and granted qualified immunity to the deputies.

• U.S. v. King, 24-30323, appeal from E.D. La.
  • Higginson, J. (Higginson, Ho, Wilson), criminal, sentencing
  • Affirming sentence based on “crime of violence” determination on prior Louisiana armed robbery conviction, though remanding for district court to conform written judgment to oral pronouncement of sentence
  • King pleaded guilty to firearm charges and challenged his sentence on appeal, arguing that his Louisiana armed robbery conviction should not qualify as a “crime of violence” under the Sentencing Guidelines. He contended that Louisiana’s armed robbery statute, being a general intent crime, could be committed recklessly or negligently, and therefore did not satisfy either the “force clause” or the “enumerated offense clause” under U.S.S.G. § 4B1.2(a). If correct, his base offense level should have been 20 instead of 22, which would have lowered his sentencing range. The Fifth Circuit, applying plain error review because King had not raised this objection in the district court, concluded that there was no clear or obvious error. The court noted that while Louisiana general intent crimes can sometimes encompass reckless conduct, its precedent limits that conclusion to specific statutes like aggravated assault, and no Louisiana authority clearly establishes that armed robbery can be committed recklessly or negligently. Thus, the district court’s calculation of King’s base offense level at 22 was affirmed.
  • King also challenged his sentence on two other grounds. First, he argued that the district court erred in failing to ensure he received credit for time served before sentencing, pointing to the court’s statements suggesting such credit was intended. However, because the record was unclear about whether he was in state or federal custody at the time, and because sentencing courts cannot themselves award credit for time served (that responsibility lies with the Bureau of Prisons), the Fifth Circuit remanded for clarification of the district court’s intent. Second, King and the government agreed that the written judgment conflicted with the court’s oral pronouncement regarding two special conditions of supervised release. The appellate court therefore remanded for the judgment to be corrected. In sum, the Fifth Circuit affirmed King’s Guidelines calculation but remanded for clarification of credit-for-time-served issues and correction of the supervised release conditions.

• Stelly v. Department of Public Safety and Corrections, 24-30550, appeal from E.D. La.
  • Higginson, J. (Higginson, Ho, Wilson), employment discrimination
  • Affirming summary judgment dismissal of Title VII claim and dismissal of sec. 1981 claim by white plaintiff alleging he was passed over for promotion 31 times, sometimes in favor of non-white employees.
  • The Louisiana State Police (“LSP”) follows a multi-step hiring process for its limited captain positions. Lieutenants must pass an eligibility exam, after which the top scorers advance to an interview panel that includes the Superintendent and deputies. The Superintendent ultimately decides who to promote, considering interviews, recommendations, and career experience. Lieutenant Stelly, who had served since 1995 and become a lieutenant in 2004, applied for 31 captaincies between 2008 and 2021 without success. He sued after two promotions went to non-white lieutenants—Robert Burns II (Asian-American) for Operational Development Division and Saleem El-Amin (Black) for Gaming Enforcement Division—alleging Title VII and § 1981 violations, along with constructive discharge and retaliation. The district court dismissed all but his Title VII claim, then granted summary judgment for LSP, holding Stelly offered no evidence that race, rather than qualifications, drove the decisions.
  • On appeal, the Fifth Circuit reviewed the grant of summary judgment de novo under the McDonnell-Douglas framework. Stelly established a prima facie case, shifting the burden to LSP, which justified its decisions by emphasizing Burns’s nearly eight years of direct ODD experience and El-Amin’s service in GED with strong recommendations and military leadership background. The court emphasized that while Stelly had higher exam scores, commendations, and seniority, those metrics were not decisive in LSP’s holistic evaluation, which prioritized division-specific experience and communication skills. Evidence showed LSP consistently treated exam scores as only a threshold for interview eligibility, not as a promotion determinant. Stelly’s statistical analysis of promotions was discounted as flawed and selective, while his mixed-motive theory failed because he provided no evidence that race played any role in the promotion decisions.
  • Finally, the appellate court addressed the dismissal of Stelly’s § 1981 claim. Because promotions to captain would have created a “new and distinct relation” with LSP, his claim fell under pre-1991 § 1981 jurisprudence, which is subject to Louisiana’s one-year prescriptive period. Stelly conceded that the captaincy would have entailed significant changes in compensation, responsibilities, and departmental placement, making it a distinct employment relationship. As a result, the claim was time-barred. The Fifth Circuit affirmed both the summary judgment on Stelly’s Title VII claim, finding no evidence of pretext or discrimination, and the dismissal of his § 1981 claim as untimely.

• Doe v. Jewell, 24-50480, appeal from W.D. Tex.
  • Higginbotham, J. (Higginbotham, Willett, Ho), Ho, J., concurring; qualified immunity
  • Affirming denial of motion to dismiss on qualified immunity grounds sec. 1983 claims against school principal for failure to respond to sexual molestation of plaintiffs’ pre-kindergarten daughter by faculty member.
  • In this case, Jane Doe, a pre-kindergarten student at Lorena Primary School, was sexually abused by substitute teacher Nicolas Crenshaw between October 2020 and May 2021. Multiple staff members, including aides and teachers, observed and reported Crenshaw’s inappropriate conduct—such as placing children on his lap, locking classroom doors, and lying under a blanket with Jane—to Principal April Jewell. Despite these warnings, Jewell failed to act: she reprimanded the whistleblowers, ignored photo evidence, and continued to allow Crenshaw access to Jane. After Jane disclosed abuse, Crenshaw was arrested, pleaded guilty, and was sentenced to a minimum of sixty years in prison. Jane’s parents then sued the school district and Jewell, alleging Fourteenth Amendment violations of Jane’s right to bodily integrity.
  • The Fifth Circuit reviewed the case under the established two-step qualified immunity framework: whether the plaintiff alleged a constitutional violation, and whether that violation was clearly established at the time. Applying the Taylor standard for supervisory liability in school sexual abuse cases, the court found that Jane’s complaint sufficiently alleged Jewell had knowledge of a pattern of inappropriate behavior, acted with deliberate indifference by ignoring multiple warnings and refusing to investigate, and caused Jane’s injury by failing to intervene. The court emphasized that Jewell’s reprimand of staff members and her reassignment of a concerned aide may have facilitated further abuse.
  • The court also held that Jewell’s conduct satisfied the “shocks-the-conscience” standard, which applies in substantive due process claims under the Fourteenth Amendment. While recognizing this is a demanding standard, the court concluded that Jewell’s repeated inaction—despite photographic evidence and direct reports—rose to the level of deliberate indifference that could qualify as conscience-shocking in the context of protecting young children from sexual abuse. Her conduct demonstrated willful disregard for obvious risks, making her potential liability constitutionally viable.
  • Finally, the court determined that Jane’s right to bodily integrity was clearly established by the 2020–2021 school year. Since the 1980s, courts have recognized students’ substantive due process right to be free from sexual abuse by school employees, and supervisory officials’ duty to prevent such abuse when they have notice. Given longstanding precedent and the Fifth Circuit’s en banc decision in Taylor, Jewell had “fair warning” that her failure to supervise and respond appropriately to repeated complaints violated Jane’s constitutional rights. Thus, the Fifth Circuit affirmed the district court’s denial of qualified immunity and allowed the claims against Jewell in her personal capacity to proceed.
  • Judge Ho concurred, emphasizing that a school principal’s extreme dereliction of duty—ignoring and even punishing reports of a faculty member’s suspected sexual abuse of a five-year-old—can amount to deliberate indifference that “shocks the conscience” under the Fifth and Fourteenth Amendments. Although the “shocks the conscience” test has been criticized, it remains binding precedent, and courts have applied it in varied contexts, including excessive jury awards. Here, Principal April Jewell repeatedly dismissed and suppressed staff warnings about predatory conduct, failed to notify parents, and rationalized keeping a suspected pedophile on staff despite clear risks to students. Judge Ho concludes that if monetary awards against corporations can shock the conscience, then the willful blindness of a school administrator enabling the sexual exploitation of a child surely does as well, amounting to a profound betrayal of public trust.

Unpublished decisions

• U.S. v. Lopez-Martinez, 25-10217, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Stokes, 24-10712, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Anderson, 24-10850, appeal from N.D. Tex.
  • per curiam (Smith, Haynes, Oldham), habeas corpus
  • Dismissing as frivolous appeal from district court’s construal of defendant’s Rule 60 motion as an unauthorized successive sec. 2255 petition.

• U.S. v. Johnson, 24-30442, appeal from E.D. La.
  • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
  • Dismissing appeal of 140-month sentence on guilty-plea conviction of conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine hydrochloride.

• Morris v. Estes, 24-30553, appeal from W.D. La.
  • per curiam (King, Smith, Douglas), prisoner suit
  • Reversing dismissal of Louisiana state prisoner’s claims, and remanding for further proceedings.

• Friels v. Warren, Inc., 24-30688, appeal from W.D. La.
  • per curiam (Wiener, Willett, Ho), products liability
  • Affirming summary judgment dismissal of products liability claim.

• Loyd v. City of Ruston, 24-30736, appeal from W.D. La.
  • per curiam (Jones, Dennis, Southwick), employment discrimination, sufficiency of evidence
  • Affirming judgment on jury verdict in favor of defendant on plaintiff’s claims of gender discrimination in the denial of transfer.

• U.S. v. Johnson, 24-30803, appeal from E.D. La.
  • per curiam (Jones, Duncan, Douglas), criminal, sentencing
  • Affirming 24-month sentence on revocation of supervised release.

• U.S. v. Trevino, 24-50150, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Medina, 22-50183, appeal from W.D. Tex.
  • per curiam (Elrod, Jones, Barksdale), criminal
  • On remand from the U.S. Supreme Court, remanding to district court for reconsideration in light of Hewitt v. United States, 606 U.S. _ (2025).

• Garces v. Bondi, 25-50359, appeal from W.D. Tex.
  • per curiam (Davis, Smith, Higginson), judicial immunity, Eighth Amendment
  • Affirming dismissal of plaintiff’s suit against various court officials challenging probation conditions, and warning against filing of additional frivolous suits.

• U.S. v. Garcia-Lomas, 24-50953, appeal from W.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ruiz-Sabillon, 24-51004, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.