Take the Fifth

Designated for publication

• Martin v. Burgess, 24-20495, appeal from S.D. Tex.
  • Clement, J. (Clement, Graves, Ho) (oral argument), First Amendment, sec. 1983
  • Affirming dismissal of sec. 1983 claims arising from court’s limits on release of bail bond orders.
  • Scott Martin operates Pronto Direct Mail Marketing, Inc., a company that for decades collected criminal defendants’ contact information from publicly available bail bond orders in Harris County and sold it to private defense attorneys. In June 2023, then-Presiding Judge Genesis Draper of the Harris County Criminal Courts at Law issued an administrative order directing the District Clerk to keep confidential the contents of General Order Bonds and Personal Bonds filed in misdemeanor cases, leaving only the title, filing date, and page enumeration publicly viewable. Martin claims the order reduced the publicly available bond orders from which he could gather contact information by roughly 90–95%, costing him and his attorney clients tens of thousands of dollars. He sued the District Clerk and two judges under 42 U.S.C. § 1983, alleging First, Fifth, and Fourteenth Amendment violations and seeking injunctive relief and damages.
  • At issue on appeal was (1) whether the administrative order violates the First Amendment as an unconstitutional restriction on speech or a prior restraint; (2) whether the Sixth Amendment is implicated; (3) whether the order was issued ultra vires under Texas law; and (4) whether various immunities shield the defendants.
  • The court held that Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32 (1999), is dispositive of Martin’s First Amendment facial challenge. Like the California statute in United Reporting, the Harris County administrative order “does not restrict speech—it restricts access to government information,” making it “a governmental denial of access to information in its possession” rather than a prohibition on “conveying information that [Martin] already possesses.” The court emphasized that Martin’s attempts to distinguish United Reporting—based on the type of information, the source of the restriction, and the nature of the records—”ignore[] the dispositive similarity”: the nature of the restriction is what controls. The court further noted there is “no constitutional right to access government information, ‘or to require openness from the bureaucracy,'” quoting Houchins v. KQED, Inc..
  • The court found Martin’s Sixth Amendment argument “perplexing” and ultimately forfeited because he “did not plead a Sixth Amendment violation” in the district court and “has not adequately briefed this argument on appeal.” His string-cite of twelve cases was dismissed as reflecting “a misunderstanding of the difference between the First Amendment right to access judicial proceedings and the common law right to access judicial records,” neither of which entitled him to the contact information at issue. The court also rejected Martin’s “penumbra” argument, finding that “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it”.
  • On the ultra vires claim, the court held that Section 75.403(d)(3) of the Texas Government Code expressly vests the HCCCL presiding judge with authority as “chief administrator” over “all other court-related ministerial services in misdemeanor cases,” providing a clear legal basis for the order. The court distinguished Scham v. District Courts Trying Criminal Cases, 967 F. Supp. 230 (S.D. Tex. 1997), because unlike the defendants there, Judge Draper could articulate statutory authority for the order. Because the court found no actionable claim, it declined to reach the immunity defenses.

Unpublished decisions

• Flemons v. DeJoy, 25-60300, appeal from N.D. Miss.
  • per curiam (Jones, Duncan, Southwick) (no oral argument), employment discrimination, service of process, timeliness
  • Affirming dismissal of employment discrimination claims.
  • Tasha N. Flemons filed an employment discrimination complaint against the U.S. Postal Service and several of its employees, alleging a hostile work environment based on race, age, and gender. Her complaint appealed an EEOC finding of “no discrimination.” The district court denied her motion for appointment of counsel, and Flemons attempted to serve the defendants on her own. The United States filed a motion to dismiss for improper service under Federal Rules of Civil Procedure 4(i), 4(m), and 12(b)(5). Although Flemons retained counsel 19 days after the motion was filed, neither she nor her attorney ever responded to the motion to dismiss, moved for an extension of time to serve, or otherwise attempted to cure the service deficiencies. Her counsel also failed to appear at the final pretrial conference. The district court treated the motion as unopposed and dismissed the case without prejudice.
  • The issues on appeal were (1) whether the district court should have allowed her time to cure improper service under Rule 4(i)(4)(A), (2) whether the court failed to consider equitable factors favoring her as a pro se litigant under Rule 4(m), and (3) whether a heightened standard of review applied because the statute of limitations had run, making the dismissal functionally with prejudice.
  • The court held that Flemons forfeited her service-cure argument by never raising it before the district court—she had six months after obtaining counsel yet never filed a response to the motion to dismiss or sought an extension. Her pro se leniency argument was undermined by the fact that her retained counsel had over a year to cure procedural deficiencies and failed to do so, including missing deadlines on appeal (which was dismissed twice by the clerk’s office). Finally, the court rejected the heightened-scrutiny argument, finding that 229 days of inactivity between the filing of the motion to dismiss and the district court’s ruling constituted “significant periods of total inactivity” satisfying the standard under Millan v. USAA General Indemnity Co., 546 F.3d 321 (5th Cir. 2008).

• Crescent City Surgical Operating Co. v. Interstate Fire & Casualty Co., 25-30044, appeal from E.D. La.
  • per curiam (King, Jones, Wilson) (oral argument), insurance, arbitration, international law, equitable estoppel
  • Affirming denial of arbitration as to domestic insurers, affirming denial of equitable estoppel as to claims against domestic insurers, vacating denial of stay of litigation pending arbitration of claims against international insurers, and remanding for further proceedings.
  • Crescent City Surgical Operating Company, which operates an acute care hospital in Metairie, Louisiana, sought coverage under a single insurance policy issued by four insurers—two domestic (Independent Specialty Insurance Company and Interstate Fire & Casualty Company) and two foreign (Certain Underwriters at Lloyds, London)—after Hurricane Ida caused business interruption losses totaling $974,925.42. The insurers denied the claim, asserting Crescent City refused to cooperate with the investigation. Crescent City sued in Louisiana state court; the insurers removed to federal court under 9 U.S.C. § 205 (the Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and moved to compel arbitration. The district court initially compelled arbitration of all claims, but later—on Crescent City’s motion to reconsider—determined that the policy’s allocation endorsement created separate contracts between Crescent City and each insurer, meaning the Convention applied only to the foreign insurers. Louisiana law, which prohibits enforcement of arbitration clauses in insurance contracts (La. R.S. 22:868), governed the domestic insurers’ contracts. The district court also declined to stay the litigation against the domestic insurers pending arbitration with the foreign insurers.
  • At issue on appeal was (1) whether the foreign insurers (Underwriters) had standing to appeal despite having prevailed on arbitration of their own claims; (2) whether the Convention required arbitration of claims against the domestic insurers; (3) whether equitable estoppel could compel arbitration of the domestic claims; and (4) whether the district court erred in refusing to stay the litigation pending the foreign insurers’ arbitration.
  • The Fifth Circuit (a) denied Crescent City’s motion to dismiss the Underwriters from the appeal, finding they were aggrieved parties because their requested relief was only partially granted and the parallel litigation could adversely affect their arbitration; (b) affirmed the denial of arbitration as to the domestic insurers, following Town of Vinton v. Indian Harbor Ins. Co., 161 F.4th 282 (5th Cir. 2025), which held that a materially identical allocation endorsement created separate bilateral contracts—and because no noncitizen was party to the domestic contracts, the Convention did not apply, leaving Louisiana’s anti-arbitration statute (La. R.S. 22:868) to control; (c) affirmed that equitable estoppel could not override Louisiana positive law prohibiting arbitration of insurance claims; and (d) vacated the district court’s denial of a stay and remanded with instructions to stay further proceedings pending arbitration, finding that the district court abused its discretion by failing to apply the three-factor Rainier test—the arbitrated and litigated disputes involve the same operative facts, the claims are inherently inseparable, and the litigation would critically impact the arbitration.