Take the Fifth

Designated for publication

• Arnesen v. Lutnick, 24-60055, appeal from S.D. Miss.
  • Higginson, J. (Wiener, Haynes, Higginson) (oral argument), Appointments Clause, administrative law
  • Affirming summary judgment for plaintiffs challenging Gulf of Mexico fishery management plan.
  • Commercial Greater Amberjack fishers challenged Amendment 54 to the Gulf of Mexico fishery management plan, which slashed commercial catch limits by roughly 80%. They argued that members of the Gulf of Mexico Fishery Management Council are unconstitutionally appointed officers under the Appointments Clause, and that Amendment 54 and its implementing Final Rule should therefore be set aside. The district court found the Council members to be unconstitutionally serving as officers but ultimately granted summary judgment for the government, concluding the NMFS Assistant Administrator’s independent approval of the Final Rule broke the causal chain. At issue on appeal is (1) whether Council members exercise “significant authority” making them officers subject to the Appointments Clause; (2) if so, whether the offending powers are severable; and (3) whether the Final Rule must be vacated.
  • The court found that the Council’s veto powers—the ability to block the Secretary from repealing a fishery management plan or establishing a limited-access fishing program—do confer “significant authority” sufficient to make Council members officers. As the court noted, quoting the Third Circuit in Lofstad: if Council members “can refuse to let [the Secretary] set up limited-access fisheries, delegate to states, or repeal a plan,” they hold a veto that “no one can override.” The remaining challenged powers (proposing plans, default status of council decisions, emergency-regulation authority, and record assembly) do not independently confer significant authority because the Secretary retains ultimate control over the regulatory process.
  • The court held, however, that the veto powers are severable from the statute. Without them, Council members function as advisors or employees, not officers, and thus need not comply with the Appointments Clause. Severing the veto powers leaves the Act “a powerful, and highly successful, tool of cooperative federalism,” as Congress’s core purpose—informed co-management of fisheries—remains intact. Because the unconstitutional veto powers were not exercised in recommending Amendment 54, the Final Rule need not be vacated.
  • The court further vacated the district court’s order to the extent it permitted a challenge to Amendment 54 itself, holding that judicial review under the Act is limited to regulations promulgated by the Secretary and actions taken under implementing regulations, and does not extend to the Council’s intermediate proposal. The court also affirmed dismissal of the removal-restriction claim because the plaintiffs made no showing of a presidential desire to remove any Council member.

• United States v. Grace, 24-30730, appeal from E.D. La.
  • Stewart, J. (Jones, Stewart, Willett) (oral argument), criminal, sufficiency of evidence, Batson challenge
  • Affirming conviction of conspiracy to distribute at least 500 grams of methamphetamine and possession with intent to distribute.
  • Marshall Grace, a Black man, was stopped during a traffic stop in New Orleans, and officers recovered approximately 441 grams of methamphetamine from his vehicle. Grace gave a written statement admitting ownership, admitting he purchased eight ounces monthly for two years, and admitting he supplied drugs to co-conspirators Theodore Tardie and Jason Lonie. During jury selection, Grace raised a Batson challenge to the Government’s peremptory strike of a Black juror, Edward Davis, whose stated race-neutral basis was that Davis “had seven sons.” The district court questioned Davis sua sponte, eliciting that one of Davis’s sons had served jail time, and then denied the Batson challenge. At issue on appeal was (1) Sufficiency of evidence for the conspiracy conviction; and (2) whether the district court erred in denying the Batson challenge.
  • The court found ample evidence of an agreement to distribute at least 500 grams of methamphetamine, including Grace’s own admissions, co-conspirator testimony, and text messages requesting drug resupply even while Grace was in police custody.
  • Regarding the Batson challenge, the court took the opportunity to “emphasize that the district court strayed from Supreme Court and Fifth Circuit precedent” by questioning Davis sua sponte rather than evaluating the Government’s stated reasons. The court noted that under Miller-El, “a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” Nevertheless, the district court correctly denied the Batson challenge at step three because Grace failed to carry his burden of proving purposeful discrimination: two Black jurors were empaneled with one Black alternate, and the Government’s stated reason of Davis “having seven sons” was not “clearly pretextual” on its face.

• Congious v. Shaw, 25-10886, appeal from N.D. Tex.
  • Smith, J. (Smith, Wiener, Higginson) (oral argument), Wiener, J., concurring; sec. 1983
  • Affirming summary judgment for defendant on pretrial detainee’s sec. 1983 claim.
  • Chasity Congious, a pretrial detainee at Tarrant County Jail, was approximately 37 weeks pregnant when she gave birth alone in her cell two weeks early; the infant was found stuck in Congious’s pants and died ten days later. The jail’s Medical Director, Dr. Aaron Shaw, had reviewed notes from Congious’s OB/GYN recommending induction at 39–40 weeks and noting Congious “may not recognize when she goes into labor.” On the morning of the birth, a daily report email mentioned Congious’s abdominal cramps, but Shaw stated he did not open the email before being called about the delivery. The main issue on appeal was whether Dr. Shaw had subjective knowledge of a substantial risk of serious harm to Congious sufficient to state a Fourteenth Amendment denial-of-medical-care claim under 42 U.S.C. § 1983.
  • The majority held that Shaw lacked subjective knowledge of a substantial risk of harm because he had an inducement plan in place, no intervening care had been recommended, and—critically—he did not see the daily report email referencing Congious’s cramps until after she had already given birth. Congious offered no evidence that Shaw opened the email, and the court rejected her “mailbox rule” argument as rooted in Texas contract law’s constructive notice, not the subjective-knowledge standard required for deliberate indifference.
  • Judge Wiener concurred separately, disagreeing with the majority’s conclusion that Shaw lacked subjective knowledge. He noted that Shaw “knew days before Congious gave birth in her cell that she was in the late stages of pregnancy and could give birth ‘at any time,’ that she would be unable to communicate to staff that she was in labor, and that she did not have the medical training to understand the substantial risks involved in giving birth alone.” He would have found that “a jury could find that Shaw knew of the obvious and substantial risk Congious faced.” Nevertheless, Judge Wiener concurred in the judgment because Congious could not demonstrate a clearly established right: her sole cited precedent, Easter v. Powell, involved a medical professional who “turned a deaf ear to active, ongoing harm,” which was factually distinguishable from Shaw’s failure to adequately prepare for a foreseeable future risk.

• Baker v. Coborn, 25-10545, appeal from N.D. Tex.
  • Smith, J. (Smith, Wiener, Higginson) (oral argument), qualified immunity
  • Affirming denial of qualified immunity in claim arising from fatal police shooting.
  • Darion Baker and a companion stole a car in California and drove toward Tennessee. At a gas station in Stratford, Texas, Officers Coborn and McHugh confronted them with guns drawn after dispatch confirmed the sedan was stolen. When Baker attempted to flee by car, the officers opened fire in two rounds: first while standing in front of the vehicle, and then as the car moved past them and away. Baker was fatally shot from behind; the fatal round traveled through his upper back and exited the front left of his chest. In a prior appeal, a panel held that a jury could find the second round of shots objectively unreasonable and remanded on whether the violation was clearly established. The main issue on appeal was whether, on interlocutory appeal from denial of qualified immunity, shooting at the back of a fleeing stolen vehicle—when the vehicle was moving away and no longer posed an immediate threat—violated clearly established Fourth Amendment law.
  • The court relied on Lytle v. Bexar County, 560 F.3d 404 (5th Cir. 2009), which held it unreasonable for a police officer to shoot at the back of a fleeing vehicle that no longer posed a sufficient threat. Coborn argued that Mullenix v. Luna, 577 U.S. 7 (2015), abrogated Lytle, but the court disagreed: Mullenix only abrogated Lytle‘s high-level formulation of the clearly-established standard—not its fact-specific holding that shooting at a departing vehicle under similar circumstances constitutes a Fourth Amendment violation. As the court put it, quoting Lytle: “It is unclear how firing at the back of a fleeing vehicle some distance away was a reasonable method of addressing the threat.”
  • The facts here were closely analogous to Lytle—and in some respects presented an even clearer case, because unlike in Lytle (where a chase occurred in a residential neighborhood), Coborn “fired at the slowly moving vehicle as he ran after it in an empty parking lot.” The court emphasized it expressed “no view . . . as to the ultimate merits of any claim,” noting the case remains at the summary judgment stage with genuine disputes of material fact.

Unpublished decisions

• In the Matter of VCR I, L.L.C., 25-60204, appeal from S.D. Miss.
  • per curiam (King, Southwick, Haynes) (no oral argument), Haynes, J., dissenting; bankruptcy
  • Affirming bankruptcy court’s sustaining of objection to include a disbursement in a commission calculation in a Chapter 7 plan.
  • VCR I, LLC, owned by the Rai family, filed for Chapter 11 bankruptcy in 2012; the case was later converted to Chapter 7, and Derek Henderson was appointed trustee. The estate included Mississippi real property that sold for roughly $6.8 million. An Agreed Judgment among the Rai family established that LULU I, LLC—a Mississippi company formed by family members—held 100% ownership of VCR and was entitled to receive any distributions the trustee would make to VCR as equity holder. After paying all creditors, Henderson sought total compensation of $269,993.75 based on roughly $8.2 million in disbursements, including a $2,643,066.16 surplus disbursement to LULU. The U.S. Trustee objected to including the LULU disbursement in the commission calculation, and the bankruptcy court sustained the objection. The district court affirmed. At issue on appeal was whether a Chapter 7 trustee may collect a statutory commission under 11 U.S.C. § 326(a) on surplus funds distributed to an equity security holder (LULU) that functions as a stand-in for the debtor under 11 U.S.C. § 726(a)(6).
  • The Court held that section 326(a) caps trustee compensation as a percentage of “all moneys disbursed . . . to parties in interest, excluding the debtor.” Section 726(a) directs that after all creditor claims are satisfied under subsections (a)(1)–(5), remaining surplus goes “sixth, to the debtor.” LULU was neither a creditor (its “claim” arose post-petition via the Agreed Judgment) nor the debtor itself, yet it stood in VCR’s shoes to receive the surplus after VCR had been dissolved. The court concluded that LULU “functions as [a debtor] here in the actual debtor’s absence” for purposes of receiving surplus funds, and therefore the disbursement fell within the statutory exclusion.
  • The court rejected Henderson’s argument that LULU qualifies as a “party in interest” entitled to generate a commission, reasoning that read together with § 726(a), “‘parties in interest’ must refer only to ‘claimholders’ and the ‘debtor,’ because the trustee is mandated to make disbursements to those parties.” The court also rejected the argument that this ruling imposes an impermissible limitation on trustee compensation, noting: “Our holding today explains an existing limitation under the statute. It does not create one.”
  • Henderson’s final argument—that LULU’s interest arose under § 510’s subordination provisions—likewise failed because “LULU had no claim to subordinate. Its only interest in the proceedings arose pursuant to the Agreed Judgment.” The court also found that Henderson’s characterization of a consensual subordination was raised for the first time on appeal, “drastically mischaracterizes the parties’ Settlement Order,” and contradicted his own earlier representations to the bankruptcy court.
  • Judge Haynes dissented, agreeing that LULU “is NOT the debtor” but arguing that this fact cuts the opposite way: because § 326(a) excludes only “the debtor” from the commission calculation, and LULU is concededly not the debtor, the trustee should be compensated on that disbursement. As Judge Haynes wrote: “The debtor is the entity that filed this bankruptcy and went through that arena. That is very different from LULU who is not a debtor and has not been having those problems which makes an entity need to be a bankrupt debtor.” Judge Haynes would have remanded to allow the bankruptcy court to consider awarding a percentage commission to Henderson on the LULU distribution.

• United States v. White, No. 25-50552, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Ross v. Walker, 25-60606, appeal from S.D. Miss.
  • per curiam (Elrod, Jones, Higginson) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of § 1983 complaint alleging retaliation by a state chancellor.

• Pina Gonzalez v. Bondi, 25-60561, petition for review of BIA order
  • per curiam (Clement, Richman, Willett) (no oral argument), immigration
  • Denying Cuban citizen’s petition for review of denial of motion to reopen.
  • Marlon Julian Pina Gonzalez, a Cuban native and lawful permanent resident, was found inadmissible for a conviction for credit card abuse—a crime involving moral turpitude. He filed an untimely motion to reopen, seeking equitable tolling based on ineffective assistance of counsel (“IAC”), arguing his attorney should have advised him to seek a waiver of inadmissibility under 8 U.S.C. § 1182(h). The BIA denied the motion because Pina Gonzalez failed to demonstrate that his removal would cause his U.S.-citizen son “extreme hardship,” a prerequisite for the waiver, and therefore could not show prejudice from counsel’s alleged error. The Fifth Circuit held the BIA did not abuse its discretion because, without eligibility for the waiver, the IAC claim—and hence the equitable-tolling argument—failed.

• In re Washington, 25-30410, appeal from E.D. La.
  • per curiam (Richman, Southwick, Willett) (no oral argument), foreclosure, bankruptcy
  • Affirming dismissal of claim that foreclosure violated bankruptcy automatic stay.
  • Tony Frederick Washington’s property was sold at a foreclosure sale on May 19, 2022—the same day he filed his sixth bankruptcy petition. Washington sought $6 million in damages, claiming the sale violated the automatic stay. Because two of Washington’s prior petitions had been pending and dismissed within the previous year, 11 U.S.C. § 362(c)(4)(A)(i) prevented any automatic stay from going into effect. Washington argued that § 362(c)(4)(A)(ii) required appellees to obtain a court order confirming no stay existed before proceeding, but the court held that provision is permissive, not mandatory.

• United States v. Castaneda Angulo, 25-40381, appeal from E.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Diaz-Contreras, 25-50231, c/w 25-50229, appeal from W.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, sentencing
  • Affirming 24-month sentence on revocation of supervised release.

• United States v. Brown, 25-30113, appeal from W.D. La.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing, restitution
  • Affirming 63-month sentence for attempt and conspiracy to commit bank fraud, but vacating restitution order of $1,254,790.
  • The court held the vulnerable-victim enhancement was proper because the shared characteristics of the victim group (including age and high account balances) supported a finding of unusual susceptibility. The role adjustment was supported by Brown’s own admissions in his factual basis. The consecutive-sentence argument failed because it miscited the governing guideline provision. However, the Government conceded the restitution amount likely exceeded the actual loss.

• Cordova-Almendares v. Bondi, 25-60244, petition for review of BIA order
  • per curiam (Wiener, Willett, Wilson) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA order denying asylum and withholding of removal.
  • Jessica Raquel Cordova-Almendares, a Honduran national, challenged the BIA’s denial of asylum and withholding of removal. She cited one incident in which armed men confronted her at home and threatened violence, and alleged they later passed by her home again. The court held the single incident did not reflect the “pattern of sustained pursuit” required for persecution, and the threats lacked the requisite immediacy. Moreover, there was no further contact before her departure, her family remained in Honduras without similar threats, and she did not show relocation would be unreasonable.

• United States v. Martinez-Meza, 25-40605, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Sierra-Torreblanca, 25-60522, appeal from N.D. Miss.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 180-month sentence on conviction of possession of child pornography.

• Singh v. Bondi, 25-60238, petition for review of BIA order
  • per curiam (Elrod, Willett, Wilson) (no oral argument), immigration
  • Denying Indian citizen’s petition for review of BIA order upholding denial of asylum, withholding of removal, and CAT protection.
  • Sandeep Singh, an Indian citizen and Sikh, sought asylum, withholding of removal, and CAT protection, claiming persecution by members of the Bharatiya Janata Party. An IJ made an adverse credibility finding based on (1) a forensic report showing a page of Singh’s passport had been altered, (2) Singh’s inability to explain inconsistencies about when the passport was sought and issued, and (3) nearly identical supporting affidavits from his father and friend.
  • Singh argued the forensic report was improperly admitted and that he was not given an adequate opportunity to explain the affidavits. The court held the report was probative and its admission was fundamentally fair, especially because the IJ granted a recess and Singh never requested a continuance. The IJ also directly questioned Singh about the affidavits, satisfying notice and opportunity requirements. Under the substantial-evidence standard, the adverse credibility finding was supported by specific, record-based reasons, and the record did not compel a contrary conclusion.

• Perez-Padilla v. Bondi, 25-60497, petition for review of BIA order
  • per curiam (King, Haynes, Ho) (no oral argument), immigration
  • Denying Mexican citizen’s petition for review of BIA order denying cancellation of removal.
  • Andres Perez-Padilla, a Mexican citizen, challenged the denial of cancellation of removal, arguing the agency gave inadequate weight to the hardship his U.S.-citizen children would face and failed to consider the evidence cumulatively. The court held it lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review the factual findings underlying the hardship determination. To the extent Perez-Padilla argued the established facts met the legal standard, the argument failed on the merits. The court further held that aliens do not have due process rights with respect to discretionary relief such as cancellation of removal.

• Prosper v. Harris County, 25-20362, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), sec. 1983, municipal liability
  • Affirming dismissal of sec. 1983 claim arising from plaintiff’s arrest for being a felon in possession of a firearm.
  • Robert Prosper was erroneously arrested as a felon in possession of a firearm after an officer misread his criminal record; charges were later dismissed. He sued Harris County, the City of Houston, and Officer C.M. Blackburn under 42 U.S.C. § 1983, the ADA, and Texas state tort law.
  • As a threshold matter, the court found Prosper’s notice of appeal timely under the 180-day extended window triggered by the district court’s failure to enter judgment on a separate document per Fed. R. Civ. P. 58.
  • On the merits, the complaint failed to state a claim against Officer Blackburn because it contained no well-pleaded factual allegations about him. The § 1983 Monell claims against the City and County failed because the identified policy—consulting a prosecutor before a warrantless arrest—is facially lawful, and Prosper did not allege deliberate indifference to the risk of a constitutional violation. The ADA claim failed for not identifying any denied service, program, or activity. The failure-to-protect claim failed because no special relationship was alleged. State tort claims were dismissed on governmental immunity grounds.

• United States v. Selon, 25-40345, appeal from E.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.