Take the Fifth

Designated for publication

• Doe v. U.S. Department of Health and Human Services, 24-40778, appeal from E.D. Tex.
  • per curiam (Haynes, Ho, Oldham), Ho and Oldham, concurring; oral argument
  • Ordering that panel will entertain additional oral argument via Zoom if appellant’s lead counsel requests, since lead counsel had emergency hospitalization shortly before argument. Judge Haynes noted that argument went forward because attorneys on both sides had traveled to attend the argument, and that the assistant to lead counsel did a good job.
  • Judges Ho and Oldham concurred; while noting the readiness of the second-chair counsel, they “do not presume to know how much of the record even the most capable second chair could have mastered with two hours’ notice—and the extent to which that may have affected oral argument”; and “wr[o]te separately in the hope that this will help counsel in future cases to encourage courts to chart a … course” similar to other courts that have granted continuances of argument on short notice in similar situations.

• Simantov v. Bondi, 24-60487, petition for review of BIA order
  • Stewart, J. (Jones, Stewart, Ramirez), immigration
  • Denying Israeli citizen’s petition for review of BIA order that affirmed an order of the Immigration Judge (“IJ”) denying his applications for cancellation of removal under 8 U.S.C. §§ 1229b(b)(1), (2).
  • Baruch Simantov, a native of Uzbekistan and citizen of Israel, entered the U.S. on a visitor visa in 2009, married a U.S. citizen the same year, and later had two U.S.-citizen children. After his visa expired and he was placed in removal proceedings, he sought relief by applying for cancellation of removal on two grounds: (1) non-LPR cancellation based on “exceptional and extremely unusual hardship” to his children, 8 U.S.C. § 1229b(b)(1), and (2) VAWA special cancellation as a spouse allegedly subjected to battery or extreme cruelty, § 1229b(b)(2). The Immigration Judge denied both applications—finding his testimony credible but inadequately corroborated—and the BIA affirmed, noting the absence of medical records for his eldest child, proof of child-support or tax payments, and evidence showing his ex-wife’s conduct rose to “battery or extreme cruelty.”
  • On review, the Fifth Circuit explained its jurisdiction: while factual findings underlying discretionary relief are generally unreviewable, mixed questions of law and fact are reviewable under § 1252(a)(2)(D), as clarified by Guerrero-Lasprilla and Wilkinson. Applying a deferential standard, the court upheld the BIA’s hardship determination under § 1229b(b)(1). Simantov offered only uncorroborated testimony regarding his daughter’s unspecified medical condition and his financial support; he admitted he failed to obtain records despite being on notice to do so. Because he did not demonstrate hardship “substantially different from or beyond” that ordinarily associated with a parent’s removal, he failed to meet the statute’s eligibility threshold.
  • Turning to VAWA cancellation, the court recognized that prior circuit precedent limiting review (Wilmore) has been overtaken by the Supreme Court’s recent jurisdictional cases; thus, whether the established facts amount to “battery or extreme cruelty” is a reviewable mixed question. Even so, the court agreed with the BIA that the alleged conduct—threats of deportation, name-calling, bullying, and manipulative divorce tactics—does not meet the regulatory definition encompassing acts or threats of violence or comparable abusive patterns causing physical or mental injury. The lack of corroborating records reinforced the denial. Accordingly, the petition for review was denied in full.

• Ortega v. Office of the Comptroller of the Currency, 23-60617, petition for review of order of Department of Treasury
  • Wiener, J. (Wiener, Douglas, Ramirez), administrative law, Seventh Amendment, Appointments Clause
  • Denying petitioners petition for review of comptroller’s ruling assessing civil penalties and prohibiting petitioners from working in the banking industry.
  • Petitioners Saul Ortega and David Rogers, former officers and directors of First National Bank in Edinburg, Texas, sought review of OCC enforcement orders that permanently prohibited them from banking and imposed $250,000 civil penalties each. After the Bank suffered massive post-2008 losses, entered OCC corrective regimes, and ultimately failed in 2013, the OCC in 2017 charged petitioners with unsafe and unsound practices, fiduciary breaches, and filing materially inaccurate reports. Following Lucia, the OCC reassigned the case to a properly appointed ALJ, who conducted a 12-day hearing and issued recommendations that the Comptroller adopted in part and rejected in part. The Fifth Circuit exercises jurisdiction under 12 U.S.C. § 1818(h)(2) and reviews for constitutional error de novo and agency findings under the APA’s substantial-evidence/arbitrary-and-capricious standards.
  • On the merits, liability centered on three Bank strategies executed while petitioners sat on the Loan & Discount Committee. First, the “Capital Raise Strategy” funneled Bank loans to buyers of holding-company stock, then counted those proceeds as Tier 1 capital—an impermissible practice that concealed the Bank’s true capital position and later generated losses exceeding $3.8 million when the FDIC, as receiver, charged off unpaid loans. Second, the “OREO Strategy” sought to shrink a swelling portfolio by selling properties at appraised values on lenient terms to borrowers unable to repay, causing about $7.3 million in losses pre-failure and roughly $96.55 million in losses to the FDIC post-failure. Third, petitioners changed default accounting for nonaccrual loans to the cash-basis method and ignored repeated OCC directives, overstating capital and earnings by millions across 2011–2013.
  • Petitioners raised six appellate issues. On the Seventh Amendment claim, the court held that § 1818 banking-enforcement actions fall within the public-rights doctrine: federal banking is a creature of federal law historically administered by the political branches, unlike the private antifraud claims in Jarkesy. Thus, no jury trial right attached. The Appointments Clause challenge failed because ALJ Whang was appointed by the Treasury Secretary, a department head, consistent with Lucia. The statute-of-limitations defense under 28 U.S.C. § 2462 also failed: accrual occurs when the agency determines the statutory elements are satisfied, and here the OCC had not earlier made that determination; moreover, each inaccurate Call Report within five years constituted a fresh actionable filing, not a mere continuing violation.
  • The court rejected asserted trial errors. Exclusion of cumulative and irrelevant Fannie Mae/Freddie Mac materials, the handling of offers of proof, and admission of certain deposition testimony were within the ALJ’s discretion and, in any event, were reviewed and effectively cured by the Comptroller’s consideration. Substantial evidence supported the findings that petitioners engaged in unsafe practices and filed materially inaccurate reports.
  • Finally, the court upheld the Comptroller’s prohibition orders. Although the ALJ viewed petitioners’ conduct as good-faith crisis management, the Comptroller reasonably found reckless or heedlessly indifferent scienter based on contemporaneous concealment and “sham capital” tactics, and adequately explained his departure from the ALJ’s recommendation. The preponderance-of-the-evidence standard governs such civil administrative sanctions, not clear-and-convincing, consistent with Steadman and circuit precedent. The petition for review was therefore denied in full.

Unpublished decisions

• Escobar v. Almanza, 25-10220, appeal from N.D. Tex.
  • per curiam (Stewart, Willett, Wilson), prisoner suit
  • Denying motion to proceed in forma pauperis, and dismissing in part as frivolous appeal of dismissal of Texas state prisoner’s sec. 1983 claim.

• Holland v. Texas Christian University, 25-10567, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho), Family Medical Leave Act
  • Affirming summary judgment dismissal of plaintiff’s FMLA claim based on her termination following return from leave.

• Mitchell v. Tom Green County Jail, 24-10920, appeal from N.D. Tex.
  • per curiam (Barksdale, Oldham, Douglas), prisoner suit, Americans with Disabilities Act
  • Affirming dismissal of plaintiff’s sec. 1983, and ADA claims and denial of Rule 59(e) motion.

• Wilhite v. Ark Royal Insurance Co., 24-20401, appeal from S.D. Tex.
  • per curiam (Higginson, Willett, Engelhardt), insurance
  • Affirming summary judgment in favor of insurer.

• U.S. v. Elizondo, 24-20513, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Zarate-Ramirez, 25-40132, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lopez-Soliz, 25-50180, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas), criminal, sentencing
  • Affirming recidivism enhancement to sentence on conviction of illegal reentry.

• Ramirez v. Bondi, 24-60655, petition for review of BIA order
  • per curiam (Barksdale, Oldham, Douglas), immigration
  • Denying Mexican citizen’s petition for review of BIA order dismissing her appeal of an immigration judge’s (IJ’s) denial of asylum, withholding of removal, and protection under the Convention Against Torture.