Take the Fifth

Designated for publication

• Vapor Technology Association v. Graham, 25-60694, c/w 26-60013, appeal from S.D. Miss.
  • Willett, J. (Stewart, Willett, Wilson) (no oral argument), preemption, standing, injunction
  • Denying motion for injunction pending appeal of dismissal of nicotine retailers and industry actors’ challenge to Mississippi statute prohibiting sale of electronic nicotine devices that lacked FDA approval.
  • The Fifth Circuit denied the plaintiffs’ motion for an injunction pending appeal of dismissal of their challenge to Mississippi’s House Bill 916, which requires the state’s Commissioner of Revenue to maintain a directory of only FDA-approved electronic nicotine devices and generally prohibits the retail sale of devices not listed therein. The plaintiffs—vape retailers, distributors, and trade associations—had sued the Commissioner in federal district court, asserting that the statute violated their constitutional rights, conflicted with the Food, Drug, and Cosmetic Act, and was preempted by federal law. The district court denied injunctive relief and dismissed the case for lack of jurisdictional standing.
  • The Fifth Circuit affirmed that it could not grant injunctive relief because the plaintiffs lacked Article III standing, a threshold requirement for federal jurisdiction. The court explained that because the plaintiffs did not present a concrete and particularized injury but instead asserted only a generalized grievance about state enforcement allegedly inconsistent with federal law, they failed to establish an “injury in fact” traceable to the statute that could be redressed by the court. “Rather than identify a particularized constitutional injury of their own, they assert a generalized grievance: that Mississippi has enacted and seeks to enforce a statute allegedly inconsistent with federal law. But a generalized interest in constitutional governance, standing alone, is insufficient to confer standing. Article III bars federal courts from resolving such abstract disputes.” Without such a personalized injury, there was no likelihood of success on the merits, and consequently the motion for an injunction pending appeal was denied.

• Reardon v. American Airlines, Inc., 25-10233, appeal from N.D. Tex.
  • per curiam (Barksdale, Willett, Duncan) (no oral argument), labor law, jurisdiction
  • Affirming dismissal of action against American Airlines under the Railway Labor Act for lack of subject-matter jurisdiction.
  • The Fifth Circuit affirmed the district court’s dismissal of Scott Reardon’s federal claim under the Railway Labor Act (RLA) alleging retaliatory termination by American Airlines. Reardon, a long-time American Airlines employee and union representative, had previously been terminated for stealing food and later reinstated under a Last Chance Agreement (LCA) that provided his employment could be terminated for any further policy violation. After he allegedly entered the airline’s Admirals Club in violation of the LCA, American terminated his employment again. Reardon filed suit claiming the termination violated the RLA, but American moved to dismiss, asserting the dispute was subject to the arbitration provisions of the collective bargaining agreement and thus outside federal jurisdiction.
  • The Fifth Circuit held that the district court correctly reviewed the jurisdictional challenge under Federal Rule of Civil Procedure 12(b)(1) and that Reardon’s claim constituted a “minor dispute” under the RLA, meaning it was subject to the exclusive arbitration framework provided by the collective bargaining agreement and the LCA. Because American carried its relatively light burden to show an arguable basis for terminating Reardon under the terms of the LCA/CBA, the court concluded there was no subject-matter jurisdiction over his federal RLA claim. The panel also rejected Reardon’s contention that he had adequately alleged anti-union animus sufficient to invoke an exception to the minor-dispute jurisdictional bar.

• Canada v. Sherman, 25-10548, appeal from N.D. Tex.
  • Ho, J. (Southwick, Willett, Ho) (oral argument withdrawn), bankruptcy
  • In debtor’s appeal from bankruptcy court’s determination in favor of bankruptcy trustee that debtor’s interest in a limited liability company was not exempt property in a federal bankruptcy proceeding, certifying question to Texas Supreme Court:
    • “Is an LLC membership interest exempt property in a federal bankruptcy proceeding, based on section 101.112 of the Texas Business Organizations Code?”

• U.S. v. Leonard, 23-40652, appeal from E.D. Tex.
  • per curiam (Elrod, Oldham, Wilson) (no oral argument), Oldham, J., concurring (joined by Wilson, J.); criminal, search and seizure
  • Reversing grant of motion to suppress in trial of defendant for possession of a firearm by a felon and possession of a firearm in furtherance of a drug-trafficking crime.
  • The panel, ostensibly per curiam, reversed the district court’s suppression of evidence seized from Xavier Leonard’s home after police entered without a warrant through an open door during an emergency response to a man found in distress; the panel held that suppression was inappropriate because the officers’ conduct was “close enough to the line of validity” to satisfy the good-faith exception to the exclusionary rule—meaning a reasonable officer could have believed the information supporting the subsequent warrant was untainted by unconstitutional conduct—and thus the seized drugs, cash, and firearms should not have been excluded.
  • Judge Oldham, joined by Judge Wilson, concurred in the per curiam opinion. Judge Oldham agreed with the judgment that the defendant’s motion to suppress should be denied, but he took issue with the current Fifth Circuit formulation of the “good-faith” exception to the exclusionary rule under United States v. Massi. He observed that the exclusionary rule is a judge-made doctrine (not grounded in the text or original understanding of the Fourth Amendment) that has been significantly narrowed by Supreme Court precedent such as Hudson v. Michigan and United States v. Leon. Under Massi, the Fifth Circuit admits evidence if an officer’s conduct that led to unlawfully obtained information was “close enough to the line of validity” that an objectively reasonable officer would believe the information was not tainted by a constitutional violation. Judge Oldham contended that this “close enough” formulation has become vague and unhelpful in practice, effectively functioning as an “I know it when I see it” test with little guidance on what constitutes “close enough.”
  • To remedy this lack of clarity, Judge Oldham proposed anchoring the Massi standard more firmly in the Supreme Court’s qualified-immunity framework for objective-reasonableness. He explained that because Leon grounds the good-faith exception in objective reasonableness—and because the Supreme Court has instructed that the same objective-reasonableness standard defines qualified immunity—courts should assess whether a reasonable officer in similar circumstances could have believed their conduct lawful before suppressing evidence. This approach, he suggested, would give officers clearer notice and better align the good-faith inquiry with established doctrine, while still deterring only the “patently unconstitutional” conduct that Herring v. United States and related Supreme Court cases contemplate as warranting exclusion.

Unpublished decisions

• U.S. v. Ortiz, 25-10237, appeal from N.D. Tex.
  • per curiam (Southwick, Willett, Ho) (oral argument withdrawn), criminal, sentencing
  • Affirming 60-month sentence on revocation of supervised release.

• U.S. v. Kruse, 25-10497, appeal from N.D. Tex.
  • per curiam (Southwick, Willett, Ho) (oral argument withdrawn), criminal, sentencing
  • Affirming 24-month prison term and lifetime term of supervised release on revocation of prior term of supervised release.

• Haddix v. Bisignano, 25-11074, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), social security
  • Affirming denial of motion for reconsideration of summary judgment in favor of Social Security Administration in plaintiff’s challenge to denial of disability benefits.

• Oliver v. Jack Henry & Associates, Inc., 25-20153, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), Americans with Disabilities Act
  • Affirming summary judgment dismissal of plaintiff’s ADA failure-to-accommodate claim against her former employer.

• Trahant v. Mintz, 25-30193, appeal from E.D. La.
  • per curiam (Haynes, Duncan, Ramirez) (oral argument), bankruptcy
  • Affirming denial of motion to remand suit brought against debtor’s counsel as a core bankruptcy proceeding, denial of motion to recuse bankruptcy and district court judges, and summary judgment dismissal of claims on basis that debtor’s counsel was entitled to derivative judicial immunity in claims arising from service of underlying order at bankruptcy court’s direction.

• U.S. v. Jones, 25-30337, appeal from W.D. La.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to possess with the intent to distribute methamphetamine.

• U.S. v. Cole, 25-50413, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sanders v. Arnold, 25-50667, appeal from W.D. Tex.
  • per curiam (Jones, Smith, Higginson) (no oral argument), § 1983
  • Dismissing as frivolous appeal from dismissal of § 1983 claims.

• Corporate Management, Inc. v. Henderson, 25-60168, appeal from S.D. Miss.
  • per curiam (Southwick, Willett, Ho) (no oral argument), Ho, J., concurring; False Claims Act, receivership
  • Affirming district court’s order declining the termination of a receivership after satisfaction of judgment in False Claims Act claim regarding fraudulent Medicare reporting, on finding that unresolved matters remained.
  • Judge Ho concurred, emphasizing the extraordinary nature of receivership and emphasizing that unconditional control of the corporation should be returned to its owners “as soon as practicable.”