Take the Fifth

Published decisions

• Plaquemines Parish v. BP America Production Co., 23-30294, c/w Cameron Parish v. BP America Production Co., 23-30422, appeals from E.D. La. and W.D. La.
  • per curiam (Davis, Engelhardt, Oldham) (oral argument on original panel decision), federal officer jurisdiction
  • On remand from U.S. Supreme Court on issue of federal officer removal, which had vacated the Fifth Circuit’s affirmance of the district courts’ remands to state courts, in turn remanding to district courts with instructions to proceed “consistent with the Supreme Court’s opinion.”

Unpublished decisions

• Baker v. City of McKinney, Texas, 25-40396, appeal from E.D. Tex.
  • per curiam (Haynes, Higginson, Ho) (oral argument), taking, supplemental jurisdiction, sufficiency of evidence
  • Affirming judgment in favor of plaintiff on Texas-law takings claim after federal takings claim judgment had been reversed in prior appeal.
  • At issue on appeal were (1) whether the district court abused its discretion in exercising supplemental jurisdiction over a Texas constitutional takings claim after the federal takings claim was reversed on appeal; (2) whether Texas takings law provides compensation where the federal Takings Clause does not due to the necessity exception; (3) whether the plaintiff could reelect her remedy under Texas law after reversal of her § 1983 judgment; and (4) whether the plaintiff’s damages evidence was sufficient under Texas inverse condemnation standards.
  • In July 2020, City of McKinney police used armored vehicles, gas grenades, and explosives to resolve a hostage situation in Vicki Baker’s home, severely damaging her property. The Fifth Circuit previously reversed a federal takings judgment in Baker’s favor under the necessity exception but declined to reach the Texas constitutional claim. On remand, Baker reelected her remedy under the Texas Constitution, and the district court entered judgment in her favor for $59,656.59.
  • The court held that (1) the district court did not abuse its wide discretion in retaining supplemental jurisdiction given the lengthy history of the case, including a full trial; (2) the Texas takings clause is broader than its federal counterpart, and the Supreme Court of Texas’s decision in Steele v. City of Houston controls and precludes the City’s necessity defense; (3) Texas reelection-of-remedies law permitted Baker to shift to her state claim after her § 1983 judgment was reversed; and (4) the City failed to show that Baker’s repair-and-replacement cost evidence was unacceptable under Texas law.

• Shaik v. Charles Schwab & Company, Inc., 25-10949, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), arbitration
  • Affirming motion to compel arbitration and dismissal for lack of prosecution,

• United States v. Maldonado-Vara, 25-11281, affirming N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, guilty plea
  • Affirming guilty plea conviction of illegal reentry after deportation, holding under plain error review, because the issues were not raised below, that Maldonado-Vara failed to identify any clear and obvious error affecting his substantial rights.

• United States v. Goins, 25-20521, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming sentence on revocation of supervised release.
  • The court held that the restriction on considering § 3553(a)(2)(A) factors applies only to discretionary revocations under § 3583(e), not mandatory revocations. Because Goins admitted testing positive for illegal substances more than three times in one year, his revocation was mandatory under § 3583(g)(4), and he failed to show plain error.

• United States v. Ambriz-Tovar, 25-50852, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming recidivism-enhanced sentence on conviction of illegal reentry.

• Bassett v. Gray Media Group, Inc. d/b/a WLBT-TV, No. 25-60278, appeal from S.D. Miss.
  • per curiam (Clement, Douglas, Ramirez) (oral argument), employment discrimination
  • Affirming summary judgment dismissal of employment discrimination claim.
  • At issue on appeal were (1) whether the district court erred in applying the McDonnell Douglas burden-shifting framework rather than a simpler motivating-factor test under Brady or Bostock; and (2) whether the plaintiff raised a genuine dispute of material fact that race was a motivating factor in her termination under the modified McDonnell Douglas framework.
  • Barbie Bassett, a White news anchor at WLBT in Jackson, Mississippi, was terminated after twice using language on air that the station deemed racially offensive—first referring to a Black reporter’s grandmother as “grand m*mmy” and then, six months later, saying a phrase attributed to Snoop Dogg that referenced a racial slur. WLBT received viewer and employee complaints after both incidents. Bassett sued under Title VII, arguing race discrimination because her general manager acknowledged that “there are some things that Black people can say that White people can’t say.”
  • The court held that (1) McDonnell Douglas remains the applicable framework in Fifth Circuit circumstantial-evidence Title VII cases, and neither Brady nor Bostock altered that standard; (2) WLBT met its burden of production by citing Bassett’s use of racially offensive language on air twice in violation of company policy; and (3) Bassett failed to create a genuine factual dispute that race was a motivating factor—Fortenberry’s general statement did not constitute evidence of discriminatory motive because he also said the phrase should not be said on air “whether you’re Black or White,” Bassett’s prior positive employment record was irrelevant given the recent warning, and her remaining arguments were conclusory or unsupported by the record.