September 11, 2025, opinions

Posted on by tadbartlett
  • Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 23-20337, appeal from S.D. Tex.
    • Willett, J. (Dennis, Willett, Duncan), remand
    • Reversing waiver-based order of remand based on defendant’s participation in state court proceedings.
    • The Fifth Circuit revisited a waiver-based remand dispute after the en banc court had cleared out circuit precedent that the panel had held tied its hands on an earlier review. Edward Festeryga, sued in Texas state court by his former law firm, removed to federal court within the statutory thirty-day window. The district court had remanded, holding he waived removal by filing a motion to dismiss under Texas’s anti-SLAPP statute (TCPA). When Festeryga first appealed, prior precedent barred review of waiver-based remand orders, forcing dismissal. But the full court later overruled that precedent, restoring appellate jurisdiction. The panel now addressed whether Festeryga’s state-court filing amounted to waiver and whether subject-matter jurisdiction existed.
    • The court held the district court erred in finding waiver. Under circuit law, waiver occurs only when a defendant “clearly and unequivocally” seeks adjudication on the merits in state court. Festeryga’s TCPA motion, which automatically stayed discovery but was never set for hearing or ruled upon, was merely procedural maneuvering, not a submission for merits resolution. Stopping discovery, the panel emphasized, reflects preserving the status quo, not litigating in state court. The seventeen-day timeline further undercut any inference of waiver. Thus, the remand order was reversed. However, the court declined to resolve whether diversity jurisdiction exists, since that requires resolving factual disputes about Festeryga’s citizenship. The case was remanded to the district court to determine jurisdiction in the first instance.
  • Haverkamp v. Linthicum, 24-40709, appeal from S.D. Tex.
    • Wilson, J. (Stewart, Clement, Wilson), prisoner suit equal protection, standing, sovereign immunity
    • Affirming dismissal of Texas state prisoner’s claim of violation of Equal Protection Clause in prison’s denial of sex reassignment surgery, but rather than on sovereign immunity grounds relied on by district court, on ground of lack of standing.
    • In 1994, David Allen Haverkamp was sentenced to 45 years in prison for sexually assaulting his daughter. Two decades later, he was diagnosed with gender dysphoria, leading him to seek sex-reassignment surgery while incarcerated in a Texas men’s prison. Although he received hormone therapy and pursued medical grievances requesting surgery, prison officials ultimately denied the procedure. In 2017, Haverkamp filed suit, alleging that state officials violated the Equal Protection Clause by denying surgery while permitting vaginoplasty procedures for cisgender female inmates. The district court dismissed his claims as barred by sovereign immunity, but the case returned to the Fifth Circuit for further review.
    • The litigation’s procedural history was complex. Initially, Haverkamp’s claims survived early dismissal motions, with the district court reasoning that his chemical castration and hormone treatment made him similarly situated to female inmates who received reconstructive surgeries. However, on appeal, the Fifth Circuit vacated those rulings, concluding that Haverkamp had not adequately pled connections between defendants and the policy at issue. After amendments and further motions, the district court dismissed again, finding sovereign immunity and noting that compelling officials to authorize or perform surgery would improperly intrude on medical discretion. Haverkamp appealed, pressing his equal-protection theory and seeking injunctive relief.
    • On final review, the Fifth Circuit affirmed dismissal, but on different grounds. The court held that Haverkamp lacked standing because his alleged injury—denial of surgery—was neither traceable to the defendants nor redressable by court order. The record showed no evidence that any treating physician had ever determined he was an appropriate candidate for surgery, especially given his advanced age, obesity, diabetes, and other health risks. Without a physician referral, ordering officials to change policy could not guarantee him surgery. Thus, the court concluded that Haverkamp’s claims could not proceed, and the district court’s judgment was affirmed.

Unpublished decisions

  • Lizcano v. Guerrero, 24-10124, appeal from N.D. Tex.
    • per curiam (King, Smith, Douglas), habeas corpus
    • Affirming denial of sec. 2254 petition.
  • U.S. v. Adams, 25-10465, appeal from N.D. Tex.
    • per curiam (Richman, Southwick, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pena, 24-11009, appeal from N.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez), criminal, guilty plea, sentencing
    • Affirming sentence and guilty-plea conviction for guilty plea conviction for distribution and possession with intent to distribute methamphetamine.
  • U.S. v. Bennett, 24-11036, appeal from N.D. Tex.
    • per curiam (Wiener, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hoffman, 24-30184, c/w 24-30493, appeal from E.D. La.
    • per curiam (Elrod, Duncan, Engelhardt), habeas corpus
    • Affirming denial of motion to vacate federal fraud convictions under 28 U.S.C. § 2255 as well as the denial of a motion to terminate a term of supervised release.
  • U.S. v. Santos, 25-40045, appeal from S.D. Tex.
    • per curiam (Elrod, Higginson, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Apodaca v. Legard, 25-40103, appeal from E.D. Tex.
    • per curiam (Graves, Ho, Douglas), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s sec. 1983 claims.
  • U.S. v. Gonzalez, 25-40205, appeal from S.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rodriguez-Contreras, 25-50059, appeal from W.D. Tex.
    • per curiam (King, Haynes, Ho), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. Orozco, 24-50104, appeal from W.D. Tex.
    • per curiam (Graves, Higginson, Wilson), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Griffin, 24-50247, appeal from W.D. Tex.
    • Rodriguez, J. (Jones, Graves, Rodriguez, by designation), criminal, sentencing
    • Affirming 121-month sentence on conviction of drug trafficking.