Take the Fifth

Designated for publication

• Bradford v. Sovereign Pest Control of TX, Inc., 24-20379, appeal from S.D. Tex.
  • Elrod, C.J. (Elrod, Clement, Haynes) (oral argument), Telephone Consumer Protection Act
  • Affirming summary judgment dismissal of TCPA claim.
  • Bradford sued, claiming that prerecorded calls the company made to his cell phone violated the TCPA because they lacked “prior express written consent” and constituted telemarketing. The panel held that (1) the TCPA itself requires only prior express consent (oral or written) for autodialed or prerecorded calls to wireless numbers, not necessarily written consent, and (2) Bradford had provided that consent by giving his cell number in a service agreement and responding to the calls over an extended business relationship. Because he consented to the calls at issue, the court upheld summary judgment for Sovereign Pest.

• U.S. v. Lopez, 25-40027, appeal from S.D. Tex.
  • Elrod, C.J. (Elrod, Smith, Wilson) (oral argument), criminal, sentencing
  • Vacating 360-month sentence that applied a five-level enhancement for “a pattern of activity involving the sexual abuse or exploitation of a minor,” and remanding for resentencing.
  • In this criminal appeal, David Lopez, Jr. challenged enhancements the district court applied when sentencing him after he pleaded guilty to two counts of transportation and two counts of possession of child pornography. The Fifth Circuit affirmed the district court’s application of a five-level “distribution” enhancement under the Sentencing Guidelines, concluding that Lopez implicitly agreed to distribute child pornography in online chatrooms that required participants to submit such material to gain access to more. The court held that this implicit agreement—where Lopez provided images with the purpose of obtaining additional materials—satisfied the guideline’s requirements, and the district court did not clearly err in finding that the enhancement was applicable.
  • However, the panel vacated and remanded Lopez’s sentence because the district court incorrectly applied a separate five-level enhancement for a “pattern of activity involving the sexual abuse or exploitation of a minor.” Under the Guidelines commentary, the offense conduct did not constitute the required two or more qualifying instances of abuse or exploitation, and both the government and the court agreed that its application was plain error. Because removing this enhancement would lower the applicable Guidelines range, the court found that the error affected Lopez’s substantial rights and remanded for resentencing. The opinion instructs the district court to consider whether new evidence could be presented to support the pattern enhancement on remand under certain exceptions.

• Kealani Distribution, L.L.C. v. Food & Drug Administration, 25-40135, appeal from E.D. Tex.
  • Summerhays, J. (Jones, Engelhardt, Summerhays, by designation) (oral argument), administrative law
  • Affirming summary judgment for the FDA on a challenge to a final rule setting forth requirements for premarket tobacco product applications.
  • The appellants—several small businesses that manufacture e-liquids and a trade association representing small vapor-product manufacturers and retailers—challenged the U.S. Food and Drug Administration’s Final PMTA Rule, which sets out requirements for premarket tobacco product applications under the Family Smoking Prevention and Tobacco Control Act of 2009. They argued that the FDA violated the Regulatory Flexibility Act (RFA) by certifying that the rule would not “have a significant economic impact on a substantial number of small entities” without an adequate factual basis. The district court granted summary judgment in favor of the FDA, upholding the rule, and the appellants appealed that decision.
  • On review, the Fifth Circuit explained that the RFA imposes procedural requirements on agencies to consider the economic impact of their rules on small entities and allows an agency to certify that a rule will not have such impacts if it publishes a factual basis for the certification. The FDA had done so here, finding that the Final PMTA Rule would “generate net benefits or negligible net costs” for most small entities—in part because the costs of preparing premarket applications had already been accounted for in a prior 2016 “Deeming Rule.” Because the FDA provided a factual basis and reasonably complied with the RFA’s procedural mandates, the certification was not arbitrary or capricious.
  • The court also rejected the appellants’ arguments that the FDA failed to consider less burdensome alternatives or that it lacked a sufficient basis for relying on prior cost estimates. The panel noted that many substantive cost disagreements fall outside the narrow scope of RFA review, which focuses on whether the agency reasonably considered and explained its actions. Because the FDA took the required procedural steps and acted within a “zone of reasonableness,” the Fifth Circuit concluded it did not err in affirming the district court’s judgment.

• U.S. v. Swarner, 24-50768, appeal from W.D. Tex.
  • Douglas, J. (Southwick, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Vacating supervised release term of sentence, and remanding for resentencing.
  • The Fifth Circuit reviewed the sentence of Keisha Lyn Swarner, who pleaded guilty under the Assimilative Crimes Act (“ACA”) to a state law offense of Sexual Performance by a Child committed on a federal enclave. The district court sentenced her to 325 months’ imprisonment followed by 30 years of supervised release. On appeal, Swarner argued that the supervised-release term was unlawful because the court relied on 18 U.S.C. § 3583(k)—which authorizes extended supervised release only for certain enumerated federal sex offenses—to set a much higher maximum than the general supervised-release provision in § 3583(b) allows. The Government countered that because Swarner’s total punishment fell within the state law statutory maximum and because her offense was analogous to a federal sex offense listed in § 3583(k), the district court could rely on § 3583(k) for supervised-release limits.
  • The Fifth Circuit agreed with Swarner that § 3583(k) did not apply to her ACA conviction because her assimilated offense was not itself one of the enumerated federal offenses in § 3583(k). The court explained that under the ACA, federal courts sentence defendants within the federal sentencing framework using the state law range for imprisonment, but statutory supervised-release maximums come from the relevant federal provision. Section 3583(b) generally caps supervised release at five years for Class A or B felonies, while § 3583(k)’s enhanced terms apply only to a specific list of federal offenses. Because Swarner’s ACA offense was not on that list, the court held she could not be sentenced under § 3583(k).
  • Notably, the court also entered a note that “Pursuant to the judicial conference long range plan for the federal courts, we forward to Congress the opinion in this case that may point out possible technical problems in statutes.”

• Hickson v. St. David’s Healthcare Partnership, L.P., 24-50956, appeal from W.D. Tex.
  • Jones, J. (King, Jones, Wilson) (oral argument), disability discrimination, personal torts, § 1983
  • Affirming in part and vacating in part summary judgment dismissal of disability discrimination, § 1983, and state-law tort claims against hospital defendants after patient dies upon ceasing giving food and fluids, and remanding.
  • The case arises from the death of Michael Hickson, a severely disabled man admitted to St. David’s South Austin Medical Center in June 2020 for pneumonia and related complications. Despite evidence that his condition had stabilized and a meaningful chance of recovery, the hospital and treating physicians withdrew life-sustaining treatment—including food and fluids—based largely on their assessment that his quality of life was poor due to his paralysis and limited speech. Michael’s family sued the hospital and several doctors alleging federal disability discrimination under Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act, constitutional claims under 42 U.S.C. § 1983, and multiple state-law tort claims. The district court dismissed or granted summary judgment on all of the family’s claims, and the Hicksons appealed.
  • On appeal, the panel held that the district court erred by adopting a categorical rule that medical treatment decisions—including withholding care—can never form the basis for a disability discrimination claim. Instead, the court clarified that a plaintiff may state a prima facie discrimination claim when the adverse treatment decision was made solely because of the individual’s disability, and that such claims based on the Hicksons’ allegations could proceed. In contrast, the Fifth Circuit affirmed the dismissal of the family’s § 1983 claims because the hospital and doctors were not state actors merely by virtue of their involvement with a temporary guardian, and the informed-consent and other tort claims either failed to state viable claims or were forfeited on appeal.
  • Thus, the panel preserved the family’s ability to pursue their federal disability discrimination claims and certain state-law claims on remand, while agreeing with the lower court on the lack of state-action under § 1983 and affirming dismissal of inadequately pleaded claims. The decision represents a significant clarification in the Fifth Circuit that medical treatment decisions are not categorically exempt from disability discrimination analysis when discrimination is shown to be the sole reason for adverse treatment.

Unpublished decisions

• U.S. v. Carter-Hickmon, 25-10618, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Carter, 25-10716, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming amended judgment modifying conditions of supervised release to include conditions that had been stricken in a prior appeal for failure to orally pronounce them.

• Miller v. Anadarko Petroleum Corp. Change of Control Severance Plan, 25-20113, appeal from S.D. Tex.
  • Jones, J. (Jones, Engelhardt, Summerhays, by designation) (oral argument), ERISA
  • Affirming summary judgment for defendant on plaintiff’s claim that defendant violated ERISA by denying separation benefits under severance plan after defendant was acquired by another company.

• Dukes v. Garber, 25-30563, appeal from W.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), § 1983
  • Affirming dismissal of § 1983 claims as frivolous.

• BY Equities, L.L.C. v. Carver Theater Productions, L.L.C., 24-30799, appeal from E.D. La.
  • per curiam (Graves, Duncan; Dennis, J., on merits panel, but matter decided by quorum after he took inactive senior status) (oral argument), breach of contract
  • Affirming judgment for plaintiffs on defendant’s default of promissory note.

• U.S. v. Galindo-Vargas, 25-40118, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Cantu, 25-40265, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of wire fraud.

• Venglar v. Jarmillio, 25-40299, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), civil, jurisdiction
  • Affirming dismissal of civil complaint for failure to show federal question jurisdiction.

• Roper v. Blanton, 25-50372, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), § 1983, timeliness
  • Affirming dismissal of § 1983 claims as untimely.

• U.S. v. Carrasco-Ginez, 25-50388, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Griffin, 25-50668, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Sorsby, 24-50987, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 300-month sentence on conviction of drug-trafficking and firearms charges.

• Bello v. Bondi, 25-60271, petition for review of BIA order
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), immigration
  • Denying Nigerian citizen’s petition for review of BIA order affirming an Immigration Judge’s (IJ) denying her application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Rojas v. Bondi, 25-60456, petition for review of BIA order
  • per curiam (Smith, Higginson, Wilson) (no oral argument), immigration
  • Denying petition of BIA order denying motion to reopen removal proceedings.