Take the Fifth

Designated for publication

• Umphress v. Hall, 20-11216, appeal from N.D. Tex.
  • per curiam (Smith, Richman, Graves) (oral argument), free exercise, mootness
  • On receiving an answer of “no” from the Texas Supreme Court on the certified question of whether Texas’s Code of Judicial Conduct prohibited judges from publicly refusing to perform same-sex weddings while continuing to perform opposite-sex weddings, holding that the suit was not moot, that the plaintiff could amend to add a free exercise claim, vacating the district court’s judgment of dismissal, and remanding for further proceedings. “We place no limitation on the matters that the district court can address on remand, and we give no indication of what decisions it should announce.”

• Farmers Texas County Mutual Insurance Co. v. 1st Choice Accident and Injury, L.L.C., 24-20275, appeal from S.D. Tex.
  • Richman, J. (Smith, Richman; Dennis, J., was on argument panel, but opinion issued by quorum after Judge Dennis took inactive senior status) (oral argument), RICO, amendment
  • Affirming dismissal of plaintiffs’ RICO claim and denial of motion to amend.
  • Plaintiffs (collectively “Farmers”), a group of insurance companies, sued a variety of medical providers and individual defendants alleging a RICO violation under 18 U.S.C. § 1962(c) based on a purported scheme to submit fraudulent medical evaluation reports and insurance claims (e.g., “up-coding,” billing for services not rendered) tied to auto-accident policyholders. The district court granted the defendants’ motions to dismiss Farmers’s operative complaint for failure to state a RICO claim—principally on the ground that Farmers failed to adequately allege the existence of an “enterprise” with the requisite consensual decision-making structure. Farmers then filed a post-judgment motion seeking leave to amend its complaint, which the district court denied, and Farmers appealed both the dismissal and denial of leave to amend.
  • On appeal, the Fifth Circuit affirmed the district court’s denial of leave to amend. Farmers argued that the district court applied the wrong legal standard—evaluating its post-judgment motion under Rule 59(e) rather than the more permissive Rule 15(a) for amendments. The panel acknowledged that Rule 15(a) generally governs amendment of pleadings and should be “freely given when justice so requires,” but also noted that a district court’s denial may be affirmed if there are “ample and obvious” grounds supporting the denial, such as undue delay, prejudice, or the movant’s repeated failure to cure earlier defects. In reviewing the record, the Fifth Circuit concluded that the district court did not abuse its discretion in declining to allow further amendment, finding that Farmers had long been aware of the alleged deficiencies and failed to timely cure them despite opportunities to do so.
  • The Fifth Circuit emphasized that, even if the district court’s order referenced the Rule 59(e) standard, the panel could affirm on any ground supported by the record. Applying controlling precedent, the court determined that the district court’s reasons for denying amendment—centered on undue delay and the absence of a timely, adequate effort to address the core deficiencies in the complaint—were apparent and justified.

• Castille v. Port Arthur ISD, 24-40644, appeal from E.D. Tex.
  • Richman, J. (Smith, Richman; Dennis, J., was on argument panel, but opinion issued by quorum after Judge Dennis took inactive senior status) (oral argument), employment, First Amendment
  • Affirming dismissal of former employee special education administrator’s claims that he was terminated in violation of his Fourteenth and First Amendment rights after reporting child abuse to his supervisor and participating in a CPS investigation.
  • The plaintiff, Dr. Johnathan Castille, was a special education and fine arts administrator in the Port Arthur Independent School District who alleged that school officials retaliated against him for reporting and addressing abuses by teachers under his supervision. Castille’s complaint described various workplace incidents, including alleged abuse of students by teachers, his reporting of those incidents to his principal, participation in a CPS interview, conflicts with the principal, and subsequent disciplinary actions, culminating in his suspension and eventual termination by the school board. He sued in federal district court alleging First and Fourteenth Amendment violations, retaliation (including under whistleblower theories), and civil conspiracy, but the district court dismissed his claims and denied his motion to amend.
  • With respect to Castille’s First Amendment retaliation claims, the Fifth Circuit applied Garcetti v. Ceballos and related precedent to hold that all of Castille’s alleged speech — internal reporting of student abuse to his supervisor, participation in a CPS interview in his supervisor’s presence, and resisting his supervisor’s characterization of a videotaped incident — was made pursuant to his official job duties rather than as a citizen on matters of public concern. Because he spoke as an employee, his speech was not protected by the First Amendment, and therefore he failed to state a retaliation claim.
  • The Fifth Circuit also rejected Castille’s Fourteenth Amendment due-process claims. The panel concluded that he had received the essential elements of procedural due process: notice of the proposed termination, a hearing before an examiner, and an opportunity to appeal to the Texas Commissioner of Education. Although Castille alleged that evidence was improperly excluded, his pleadings lacked sufficient factual detail to demonstrate a denial of meaningful process. His substantive due-process claim likewise failed because his allegations did not show arbitrary or conscience-shocking conduct by the defendants.
  • Finally, the court affirmed dismissal of Castille’s related claims. Because no constitutional violations were sufficiently pleaded, the individual defendants were entitled to qualified immunity. The civil conspiracy claim also failed for lack of an underlying constitutional violation. The Fifth Circuit further held that the district court did not abuse its discretion by declining to take judicial notice of the full administrative record, and that Castille waived certain issues — including his Texas Whistleblower Act claim and denial of leave to amend — by not adequately briefing them on appeal.

• Boudy v. McComb School District, 24-60386, appeal from S.D. Miss.
  • Richman, J. (Smith, Richman; Dennis, J., was on argument panel, but opinion issued by quorum after Judge Dennis took inactive senior status) (oral argument), employment discrimination, attorneys’ fees
  • Affirming dismissal of plaintiff’s employment discrimination claim; vacating award of defendant’s attorneys’ fees, and remanding.
  • Daphnie Newman Boudy appealed the district court’s dismissal of her employment-discrimination suit against the McComb School District. Boudy alleged retaliatory conduct following the end of a consensual relationship with a school administrator, which she claimed led to mental health harm and forced resignation. During the district-court proceedings, Boudy filed multiple motions including for appointment of counsel and to disqualify judges, and the court sua sponte ordered a mental competency examination at Boudy’s expense, citing concerns about her ability to pursue the case. When Boudy failed to comply with this and other court orders, the district court dismissed her case with prejudice and awarded attorneys’ fees to the defendants.
  • On appeal, the Fifth Circuit first addressed whether the district court abused its discretion under Federal Rule of Civil Procedure 41(b) in dismissing Boudy’s suit for failure to comply with court orders. The appellate panel explained that dismissal with prejudice for noncompliance is appropriate when there is a clear record of contumacious conduct or delay and when lesser sanctions would be futile. The court found that Boudy repeatedly failed to comply with multiple scheduled hearings and communications, despite numerous warnings, which showed “stubborn resistance to authority” rather than mere negligence. Given this pattern, the Fifth Circuit concluded that dismissal with prejudice was within the district court’s discretion.
  • The Fifth Circuit also rejected Boudy’s challenges to the sanctions imposed. Boudy argued that Rule 37 sanctions could not be used for failure to obey an examination order and that the dismissal unfairly punished her refusal to undergo the mental evaluation. The appellate panel declined to resolve those procedural arguments because it found the district court based its decision on Boudy’s overall pattern of noncompliance—with or without the examination order itself—such as failing to attend hearings and ignoring repeated directives, which independently justified dismissal.
  • Finally, Boudy contended that dismissing her case with prejudice while her competency was “in question” and without appointed counsel or a guardian ad litem violated Rule 17(c). The Fifth Circuit rejected this, explaining that Rule 17(c)’s protective mechanisms apply after a party has been adjudicated incompetent, not where incompetence is merely suggested. The appellate court also found that any implicit conclusion of competency by the district court was not clearly erroneous given the record. Accordingly, the Fifth Circuit affirmed the dismissal with prejudice; as to the fee award, the court vacated, but without specific analysis as to why–though in an analysis of whether monetary sanctions should have been issue in place of the dismissal sanction it had observed, “Boudy has repeatedly asserted that she is indigent and has maintained throughout this litigation that she has a ‘monthly fixed Social Security Disability Income of $946.00.’ Monetary sanctions would not have been in the best interests of justice under these circumstances.”

Unpublished decisions

• Houston Prime Investments, Ltd. v. Community Loan Servicing, L.L.C., 24-20171, appeal from S.D. Tex.
  • per curiam (Smith, Richman; Dennis, J., was on merits panel, but opinion issued by quorum after Judge Dennis took inactive senior status) (oral argument withdrawn), foreclosure
  • Affirming permanent injunction to enjoin foreclosure on limitations grounds.

• U.S. v. Davis, 23-10202, c/w 24-10793, appeal from N.D. Tex.
  • per curiam (Smith, Richman; Dennis, J., was on merits panel, but opinion issued by quorum after Judge Dennis took inactive senior status) (oral argument), criminal, forfeiture
  • Affirming forfeiture order upon conviction of wire fraud and money laundering counts.

• U.S. v. Madrid-Uriarte, 25-10997, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 24-month sentence on revocation of supervised release.

• U.S. v. Giles, 25-11069, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming 8-month sentence on revocation of supervised release.

• U.S. v. Grant, 25-20353, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lazar, 23-40683, c/w 25-40038, appeal from E.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (oral argument), criminal
  • Affirming conviction on charges of international drug-trafficking and murder-for-hire,

• Bello v. U.S., 25-40096, appeal from E.D. Tex.
  • per curiam (Elrod, Jones, Higginson) (no oral argument), Bivens claim
  • Dismissing as frivolous appeal from dismissal of Bivens claim.

• U.S. v. Heath, 25-40255, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Frew v. Young, 24-40442, c/w 24-40443, appeal from E.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (oral argument), § 1988, attorneys’ fees
  • Affirming in part and reversing in part award of attorneys’ fees on plaintiffs’ § 1988 claims.

• U.S. v. Cardenas-Ramirez, 24-40692, appeal from S.D. Tex.
  • per curiam (Elrod, Richman, Willett) (oral argument), criminal, sufficiency of evidence, sentencing
  • Affirming conviction and sentence of conspiracy to possess with intent to distribute five kilograms or more of cocaine.

• Hosseini-Browder v. Hosseini, 25-50190, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), trademark, Lanham Act
  • Affirming summary judgment in favor of defendant on Lanham Act and common law trademark infringement claims.

• U.S. v. Salcedo-Cano, 25-50573, c/w 25-50574, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry and revocation of supervised release.

• U.S. v. Hernandez-Hernandez, 25-50702, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.