Take the Fifth

Designated for publication

• Nathan v. Alamo Heights Independent School District, 25-50695, appeal from W.D. Tex.
  • en banc, First Amendment, Establishment Clause, Free Exercise Clause, ripeness, standing, sovereign immunity, en banc
  • Ordering initial hearing en banc, with the en banc rehearing argument of Roake v. Brumley.

• U.S. v. Jimenez, 24-40703, appeal from S.D. Tex.
  • Stewart, J. (Jones, Stewart, Ramirez) (oral argument), criminal, sufficiency of evidence
  • Affirming conviction of coercing and enticing a minor to engage in sexual activity, holding that 18 U.S.C. § 2422(b) includes nonphysical conduct, and finding that the evidence sufficiently supports that defendant attempted to coerce minor victim to engage in the lascivious exhibition of her genitals or pubic area.

• Gas Transmission Northwest, L.L.C. v. Federal Energy Regulatory Commission, 24-60002, c/w 24-60197, c/w Columbia Riverkeeper v. FERC, 24-60280, c/w State of Washington v. FERC, 24-60354, petitions for review of FERC orders
  • Stewart, J. (Stewart, Dennis, Haynes) (oral argument), administrative law, National Environmental Policy Act, Natural Gas Act, standing, ripeness
  • Denying multiple consolidated petitions for review of FERC orders regarding a pipeline expansion.
  • This consolidated appeal involved challenges by Gas Transmission Northwest (GTN), the States of Washington and Oregon, and environmental groups Columbia Riverkeeper and Rogue Climate to three FERC orders concerning a pipeline expansion project. GTN had replaced aging compressor units under FERC Regulation § 2.55(b) and later sought to increase pipeline capacity through a § 7 expansion certificate under the Natural Gas Act. FERC issued the certificate but denied GTN’s request for a predetermination that it could “roll in” the expansion costs into existing customer rates. The States and Riverkeeper then challenged both the economic and environmental aspects of the project, arguing that FERC unlawfully segmented review, misapplied its ratemaking policies, and failed its obligations under the National Environmental Policy Act (NEPA). The Fifth Circuit consolidated all petitions under 28 U.S.C. § 2112(a)(3) after GTN’s petition won the multidistrict lottery and ultimately denied each petition for review.
  • The court first addressed jurisdictional issues, finding that GTN had both standing and ripeness to seek review. GTN demonstrated concrete financial injury from project delays and renegotiations with expansion shippers after FERC’s denial of a rate predetermination, satisfying Article III’s injury, causation, and redressability requirements. The court also held the petition ripe for review because FERC’s denial was a final agency action that had immediate economic consequences and required no further factual development. It rejected arguments that GTN’s settlement with existing shippers mooted the case, noting that the company still faced capped exposure to $50 million in cost reallocations in a future rate proceeding.
  • Turning to the merits, the court reviewed FERC’s determinations under the “substantial evidence” and “arbitrary and capricious” standards of the Administrative Procedure Act. GTN’s main claim—that FERC unlawfully departed from precedent by denying rolled-in rate predetermination—failed. The court held that FERC reasonably distinguished prior cases and correctly applied its cost-causation principles. The Solar Titan replacement compressors were not in-kind replacements but created roughly 6,000 horsepower of new capacity allocated entirely to expansion shippers. Because the expansion benefited only new customers, FERC permissibly concluded that incremental rather than rolled-in pricing should apply. FERC’s approach was consistent with its prior orders and rational in deferring cost allocation to a future § 4 rate case, where full evidentiary development could occur.
  • The States’ challenges under § 7 of the Natural Gas Act likewise failed. The court upheld FERC’s finding that the expansion was required by the “public convenience and necessity,” relying on precedent agreements that fully subscribed the expanded capacity for 30 years as substantial evidence of market need. FERC was entitled to defer unresolved cost issues to later rate proceedings and need not reopen its prior § 2.55(b) approvals. The court also rejected the States’ argument that FERC erred in using GTN’s most recent depreciation rate from its prior § 4 proceeding, affirming the agency’s long-standing policy of applying existing cost-of-service determinants to set interim rates. That policy avoided delay and was reasonable given that § 7 rates are only temporary placeholders pending full adjudication under §§ 4 and 5.
  • Riverkeeper’s NEPA challenges fared no better. The court found that FERC’s environmental impact statement (EIS) adequately considered a “no-action alternative” and that the agency’s limited discussion still fell within the broad discretion recognized by the Supreme Court’s recent Seven County decision. Likewise, FERC reasonably excluded the earlier § 2.55(b) compressor replacements from the EIS as non-“connected actions,” drawing a “manageable line” consistent with established policy exempting such replacements from further review. Finally, the EIS sufficiently addressed safety concerns by requiring compliance with Department of Transportation standards and explaining why additional consultations or supplemental analyses were unnecessary. FERC’s judgment, the court emphasized, lay well within NEPA’s “zone of reasonableness.”

Unpublished decisions

• U.S. v. Hall, 25-10315, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Blakeley, 25-10444, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Villalobos-Espinoza, 25-10511, appeal from N.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal
  • Affirming conviction of illegal reentry.

• Randle v. The PNC Financial Services Group, 24-11048, appeal from N.D. Tex.
  • per curiam (Southwick, Higginson, Wilson) (no oral argument), § 1981, § 1983, qualified immunity
  • Affirming dismissal of claims racial-discrimination claims against bank, bank employees, and responding officers, arising from escalation of disagreement about customer service event.

• U.S. v. Almaraz-Muniz, 24-40701, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, witness testimony, Sixth Amendment
  • Affirming convictions of: (1) conspiracy to possess with intent to distribute one kilogram or more of heroin, 400 grams or more of fentanyl, and five kilograms or more of cocaine; (2) possession with intent to distribute more than one kilogram of heroin; (3) possession with intent to distribute more than 400 grams of fentanyl; and (4) possession with intent to distribute more than 500 grams of cocaine.

• Belknap v. Spinks, 23-50465, appeal from W.D. Tex.
  • Richman, J. (Richman, Oldham, Ramirez) (oral argument), Oldham, J., dissenting in part; qualified immunity
  • Affirming in part and reversing in part denial of 12(b)(6) motion to dismiss on qualified immunity grounds § 1983 claims arising from suicide of plaintiff’s relative while in pretrial detention after he was taken off suicide watch.
  • The Fifth Circuit’s decision in this § 1983 action stems from the suicide of pretrial detainee Dakota Belknap, who hanged himself after being removed from suicide watch. His family sued jailers Tisha Spinks and Harry Vanskike, among others, alleging that both officers violated Belknap’s Fourteenth Amendment rights by taking him off suicide watch, placing him in a cell with tie-off points and bedding, and failing to render lifesaving aid when they found him hanging. The district court denied qualified immunity, finding the complaint plausibly alleged constitutional violations. On interlocutory appeal, the Fifth Circuit reviewed de novo whether those allegations stated claims for violations of clearly established rights under the qualified-immunity framework.
  • The panel first addressed the decision to remove Belknap from suicide watch. It concluded that the complaint did not plausibly allege that Sergeant Vanskike was deliberately indifferent to Belknap’s suicide risk. Although he expressed frustration with Spinks’s indecision, the complaint indicated he instructed her to secure clearance from a mental-health professional before moving Belknap—conduct inconsistent with disregard of risk. Accordingly, the court reversed the district court’s denial of qualified immunity as to Vanskike. As to Spinks, however, the panel found sufficient allegations of both knowledge and deliberate indifference: she knew Belknap’s recent suicide history and risk indicators, yet allegedly moved him to a cell with bedding and tie-off points without ensuring mental-health approval. Citing Converse v. City of Kemah and Jacobs v. West Feliciana Sheriff’s Department, the court held that it was clearly established by 2020 that officers violate a detainee’s Fourteenth Amendment rights by, with deliberate indifference, placing a suicidal inmate in such conditions. The court therefore affirmed the denial of Spinks’s qualified-immunity defense on that claim.
  • Turning to the failure-to-render-aid claim, the Fifth Circuit held that neither jailer’s alleged conduct plausibly demonstrated deliberate indifference. The complaint reflected that both believed Belknap was already dead—Vanskike checked for a pulse, appeared distraught, and said “he’s gone,” while Spinks relied on that assessment and called for EMS. Although their failure to perform CPR might have been negligent, negligence does not meet the constitutional standard of deliberate indifference. Because the complaint did not plausibly allege that either officer believed Belknap could still be saved, the court reversed the district court’s denial of qualified immunity on this theory for both defendants.
  • Finally, the panel rejected the family’s “failure to intervene” claims, reasoning that such liability requires knowledge of an ongoing constitutional violation and a realistic opportunity to prevent it. Since the court found no plausible constitutional violations except Spinks’s removal-from-suicide-watch conduct, most bystander-liability claims failed automatically. Even as to that episode, the complaint alleged that Vanskike told Spinks to get mental-health clearance before moving Belknap—negating any inference that he acquiesced in her conduct. The Fifth Circuit thus affirmed the denial of qualified immunity only as to Spinks’s alleged deliberate indifference in moving Belknap off suicide watch, reversing in all other respects.
  • Judge Oldham dissented in part, concluding that although Dakota Belknap’s suicide was tragic, jailer Tisha Marie Spinks was entitled to qualified immunity because her actions did not violate clearly established law. Judge Oldham emphasized that clearly established rights must be specific to the officer’s circumstances, especially in cases involving suicidal detainees, where officials must only act reasonably based on perceived risk. Unlike prior cases such as Converse v. City of Kemah and Jacobs v. West Feliciana Sheriff’s Department, where officials ignored obvious and ongoing suicide risks, Spinks relied on multiple mental-health evaluations indicating Belknap was no longer suicidal and consulted her supervisor before removing him from suicide watch. Judge Oldham concluded that no precedent clearly required continued suicide precautions once credible evidence suggested the risk had abated.

• U.S. v. Broome, 25-60058, appeal from S.D. Miss.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of possession with intent to distribute a substance containing a detectable amount of methamphetamine.

• U.S. v. Jones, 24-60070, appeal from S.D. Miss.
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), criminal, Second Amendment
  • Reversing dismissal of indictment for possession of a firearm by a felon, and remanding for reconsideration of the defendant’s as-applied Second Amendment challenge in light of recent Fifth Circuit precedent rejecting such challenges.