Take the Fifth

Designated for publication

• Bodin v. City of New Orleans, 25-30524, appeal from E.D. La.
  • Graves, J. (Wiener, Haynes, Graves) (oral argument), takings, preemption
  • Affirming dismissal of challenges to City’s short-term rentals regulations.
  • New Orleans has enacted a series of ordinances to address the negative effects of short-term rentals (e.g., Airbnb) on residential neighborhoods, including noise, trash, loss of neighborhood character, and reduced affordable housing. A group of prospective short-term rental hosts and Airbnb challenged two ordinances: (1) the 2023 Ordinance, which limits short-term rental licenses to one property per residential block, distributed by lottery; and (2) the 2024 Ordinance, which prohibits short-term rental platforms from facilitating transactions on unlicensed rentals and requires platforms to verify a listing’s license status every 30 days. The district court dismissed all claims under Rule 12(b)(6) except Airbnb’s Fourth Amendment challenge to the monthly reporting requirement, on which Airbnb received summary judgment.
  • At issue on appeal was (1) whether the 2023 Ordinance effects an unconstitutional taking under the Fifth Amendment Takings Clause (per se or regulatory); and (2) whether Section 230 of the Communications Decency Act preempts the 2024 Ordinance’s booking and verification requirements.
  • Per Se Taking: The court rejected the Hosts’ argument that the ordinance effects a per se taking by interfering with a “fundamental right” to lease property. The court held that per se Takings Clause protection is triggered only when government action “physically appropriate[s] property or otherwise interfere[s] with the owner’s right to exclude others from it,” citing Sheetz v. County of El Dorado and Cedar Point Nursery v. Hassid. The court emphasized: “All that both cases make clear is that the per se taking test protects against physical invasions and interference with a single fundamental right: the right to exclude.” It further refused to equate the “ability to include” short-term rental guests with the “treasured right to exclude.”
  • Regulatory Taking: Applying the Penn Central balancing test, the court found that although the first two factors (economic impact and interference with investment-backed expectations) slightly favored the Hosts, both were weak. The economic losses were characterized as trivial—the only specific figure was one Host’s loss of approximately $20,000 per year—and “loss of future profits . . . provides a slender reed upon which to rest a takings claim.” Investment expectations were unreasonable given the City’s extensive history of regulating short-term rentals and the total ban lifted only in 2017. The third factor—the character of the government action—was dispositive: the ordinance was “just that—a reasonable zoning regulation” furthering the City’s important interest in residents’ quality of life.
  • Booking Requirement: The court held that the prohibition on platforms collecting fees for facilitating unlicensed rental transactions does not treat Airbnb as a “publisher or speaker” of third-party content. Citing A.B. v. Salesforce, Inc., the court noted that “[p]olic[ing] the use of [the platform’s own] products . . . is not . . . quintessentially” a publication function. The ordinance “leaves Airbnb free to host ‘as many unlawful [short-term rental] listings on its website as it chooses to'” and any decision to remove listings “falls to business judgment—not legal duty.”
  • Verification Requirement: The court acknowledged this was superficially a closer question but ultimately held that Airbnb could comply without monitoring third-party content. Under the ordinance, hosts must submit license information directly to the platform as “distinct, internal, and nonpublic” disclosures, meaning Airbnb need not review public listing content to verify license status. The court quoted HomeAway.com v. City of Santa Monica and Salesforce to hold that information existing only “but for” third-party content is insufficient to trigger Section 230.
  • Other Claims: The court noted that the Hosts and Airbnb raised “cursory arguments” against dismissal of their remaining claims, reviewed the district court order and briefing, and, “[s]eeing no error,” affirmed dismissal of those claims as well.

Unpublished decisions

• Spinks v. United States, 25-30583, appeal from E.D. La.
  • per curiam (Willett, Engelhardt, Douglas) (oral argument withdrawn), personal torts
  • Affirming judgment for defendant in case arising from auto accident between plaintiff and Army vehicle.
  • At issue on appeal was whether the district court correctly applied Louisiana negligence law regarding a rear-end collision involving an Army tactical truck; whether the factual finding that a sawhorse fell immediately after the plaintiff merged into the following distance was clearly erroneous
  • The court held the district court applied the correct legal standard and its factual findings were not clearly erroneous. The district court permissibly credited testimony that the sawhorse fell almost immediately after the plaintiff merged into the Army truck’s safety cushion, leaving the military driver no time to reestablish a safe following distance. The presumption of negligence for a rear-end collision was properly found to be rebutted under Louisiana law.

• Mzese v. Blanche, 25-60449, petition for review of BIA order
  • per curiam (Davis, Richman, Oldham) (no oral argument), immigration, timeliness
  • Denying as untimely petition for review of BIA order dismissing appeal from denial of waiver of inadmissibility, adjustment of status, cancellation of removal, asylum, withholding of removal, and CAT protection.
  • The petition was received more than 30 days after the BIA’s decision, and petitioner failed to meet the requirements of Federal Rule of Appellate Procedure 25(a)(2)(A)(iii) to benefit from the prison mailbox rule.

• Damond v. Wiley, 25-30523, appeal from W.D. La.
  • per curiam (King, Smith, Ramirez) (no oral argument), appellate jurisdiction, prisoner suit, service of process
  • Remanding for determination whether service had been made on defendant where claims against defendant were not adjudicated.
  • At issue on appeal was whether the court had appellate jurisdiction under 28 U.S.C. § 1291 where the district court’s judgment did not adjudicate claims against defendant “Doctor Elijah” and did not certify partial judgment under Rule 54(b); whether Elijah was properly served such that his non-adjudication would defeat finality.
  • The court noted the process receipt was ambiguous—it showed service “at corr. center w/ Mr. Allen” without identifying whether Allen was authorized to accept service on Elijah’s behalf. The case will return to the panel for determination of jurisdiction.

• Davenport v. Zachary Manor Nursing and Rehabilitation Center, 25-30625, appeal from M.D. La.
  • per curiam (Davis, Richman, Oldham) (no oral argument), Family and Medical Leave Act
  • Affirming judgment in favor of defendant on pro se plaintiff’s FMLA claims.
  • At issue on appeal was whether a pro se plaintiff established FMLA interference and retaliation claims where she sought leave to quarantine during COVID-19 to protect her mother; whether plaintiff’s mother had a “serious health condition” under the FMLA; whether there was a causal link between plaintiff’s discharge and FMLA-protected activity.
  • The plaintiff failed to produce evidence that her mother had a “serious health condition” as defined by the FMLA, defeating the interference claim. The retaliation claim failed because the plaintiff produced no evidence correlating her termination with any protected activity and nothing to dispute the employer’s evidence that she was fired for an unapproved absence.

• Micah 6:8 Mission v. Reynolds Metals Co., 25-30673, appeal from W.D. La.
  • per curiam (Willett, Engelhardt, Douglas) (no oral argument), Clean Water Act, judicial notice
  • Vacating dismissal of Clean Water Act citizen suit based on judicially noticed facts from LDEQ memo.
  • At issue on appeal was whether the district court abused its discretion by taking judicial notice of an LDEQ memo and relying on its factual findings as true to dismiss a Clean Water Act citizen suit for lack of subject-matter jurisdiction.
  • Courts may take judicial notice that public records exist and what they say, but may not accept disputed facts within those records for their truth. The district court improperly deferred to the LDEQ’s finding of no violation to dismiss the case. On remand, the court must determine jurisdiction based on whether plaintiffs made a good-faith allegation of ongoing violation without relying on the LDEQ memo for its truth.

• United States v. Garcia-Infante, 25-50509, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming 24-month sentence for illegal reentry.
  • The defendant failed to show an abuse of discretion. The district court could rely on factors encompassed within the guidelines to support a non-guidelines sentence, and could consider the defendant’s full criminal history without limiting the inquiry to recent offenses.

• United States v. Alderete, 26-10276, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Agbor v. Blanche, 25-60616, petition for review of BIA order
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), immigration
  • Denying petition for review of BIA order upholding denial of withholding of removal, asylum, and CAT protection.
  • At issue on the petition was whether the BIA erred in denying withholding of removal by concluding the government rebutted the presumption of future persecution; whether the Circumvention of Lawful Pathways (CLP) rule properly barred asylum eligibility; eligibility for CAT relief.
  • Petitioner failed to show the evidence compelled a contrary conclusion on withholding of removal. His challenge to the CLP rule was unexhausted, and he forfeited arguments about the BIA’s reliance on the CLP rule by failing to raise them. He likewise failed to show the evidence compelled a contrary conclusion on CAT relief.

• Spencer v. North Mountain Village, 25-50465, appeal from W.D. Tex.
  • per curiam (Davis, Richman, Oldham) (no oral argument), Fair Housing Act, amendment
  • Affirming dismissal of Fair Housing Act claims and denial of leave to amend.
  • At issue on appeal was whether a pro se plaintiff stated claims of disparate treatment or disparate impact under the Fair Housing Act after her mother’s apartment flooded; denial of leave to amend.
  • The complaint failed to assert membership in an FHA-protected class, identify any adverse housing-related action, or allege class-based animus for disparate treatment. It identified no policy or practice with a disproportionate impact for disparate impact. The district court did not abuse its discretion in denying leave to amend because proposed amendments were purely conclusory and did not state an FHA claim.

• Whiticar v. Parish Hospital Service District, 26-30071, appeal from E.D. La.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), employment discrimination, § 1981
  • Affirming dismissal of employment discrimination claim.
  • At issue on appeal was whether plaintiff established a prima facie case of retaliation under 42 U.S.C. § 1981—specifically, whether he showed a causal link between his protected activity and his demotion, and whether the employer’s legitimate non-retaliatory reason was pretextual.
  • The plaintiff failed to carry his burden on causation because the decisionmaker (Willis) was unaware of his protected activity—plaintiff produced no evidence to the contrary. Even assuming he could clear the causation bar, he failed on pretext because he presented no evidence disputing the employer’s performance-based reason for his demotion.

• United States v. Dill, 25-40763, appeal from S.D. Tex.
  • per curiam (Elrod, Clement, Oldham) (oral argument withdrawn), criminal, Sixth Amendment, restitution
  • Affirming restitution award on child pornography conviction.
  • At issue on appeal was whether the district court erred in awarding $8,000 in mandatory restitution under 18 U.S.C. § 2259 for lost wages and relocation costs to the victim’s family where the defendant argued his receipt of child pornography did not proximately cause those losses; preserved Sixth Amendment challenge to judge-found restitution facts under Apprendi.
  • The Apprendi challenge was foreclosed by circuit precedent. On proximate cause, the district court did not abuse its discretion in finding that the defendant’s enthusiastic receipt of child pornography was “inextricably linked” to his encouragement of the minor to leave home, the minor’s disappearance, and the family’s resulting losses. The court properly relied on the victim impact statement, the PSR, and the causal chain connecting the offense conduct to the family’s lost wages and moving expenses.

• Pena v. Fuentes, 25-50186, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), qualified immunity
  • At issue on appeal was whether a prisoner raised a genuine dispute of material fact on his Fourth Amendment excessive force claim against jail officers; qualified immunity.
  • The plaintiff failed to show a genuine dispute as to any material fact, and the district court did not err in finding the defendants entitled to qualified immunity and granting summary judgment. Multiple other claims were abandoned for failure to brief.

• United States v. Sierra-Cruz, 25-50669, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Oldham) (no oral argument), criminal, sentencing
  • Affirming 42-month sentence on conviction of illegal reentry.
  • The district court did not abuse its discretion in varying upward based on the defendant’s criminal history, the need for deterrence, and the need to protect the public. The sentence was well below the statutory maximum.

• Ramsey v. San Jacinto College District, 25-20195, appeal from S.D. Tex.
  • Richman, J. (Richman, Higginson, Oldham) (no oral argument), Oldham, J., dissenting; Americans with Disabilities Act, Family and Medical Leave Act
  • Reversing grant of summary judgment on ADA claims and FMLA retaliation claim; affirming summary judgment dismissal of FMLA interference claim; and remanding.
  • At issue on appeal was whether the district court erred in granting summary judgment on plaintiff’s ADA discrimination claim, ADA retaliation claim, FMLA retaliation claim, and FMLA interference claim after her employer terminated her following multiple FMLA leaves and requests for disability accommodations.
  • The court reversed the grant of summary judgment on the ADA discrimination claim, the ADA retaliation claim, and the FMLA retaliation claim, finding that plaintiff raised genuine issues of material fact on pretext. Specifically, her supervisor’s declaration that he did not know she was disabled was contradicted by other evidence in the record, and under the cat’s paw theory, the supervisor’s potential discriminatory and retaliatory animus could be attributed to the ultimate decisionmaker. The court affirmed the dismissal of the FMLA interference claim as inadequately briefed.
  • Judge Oldham dissented, arguing that no reasonable juror could conclude SJC’s stated reasons for firing Ramsey were pretextual given her extensive documented performance deficiencies. He cataloged a detailed timeline of repeated tardiness, missed deadlines, and errors, noting that many of Ramsey’s excuses for poor performance had nothing to do with her medical condition. He characterized the majority’s reasoning as “pure speculation” and wrote: “Given this woeful record, I cannot imagine how any reasonable juror could conclude that SJC’s stated reasons for firing Ramsey were pretextual.” He also criticized the majority’s analysis as “predicated on the notion that Ramsey’s supervisor lied under penalty of perjury,” calling it “quite an accusation.”