Take the Fifth

Published decisions

• Pena v. Starr County, Texas, 25-40481, appeal from S.D. Tex.
  • Douglas, J. (Stewart, Engelhardt, Douglas) (oral argument), qualified immunity
  • Affirming grant of qualified immunity summary judgment for claims arising from detainee’s death.
  • Alberto Pena was arrested for criminal mischief in Starr County, Texas, while heavily intoxicated. During transport, he struck his head on the interior of a patrol car multiple times and may have briefly lost consciousness, but the arresting deputies did not inform the jail of the head strikes. At the jail, Pena was placed in a detox cell, where during the day shift he struck his head against the cell window 14 times in a single burst and collapsed to the floor. Day shift officers placed him in a full-body WRAP restraint but did not seek medical help. On the night shift, Pena’s cousin Edgar—brought in to calm him—testified that Pena was turning purple, foaming at the mouth, and complaining he could not breathe, though the officers disputed perceiving these signs. Shortly thereafter, Pena stopped moving and was found with foam on his mouth; he was transported to the hospital and pronounced dead. The autopsy listed “Cardiorespiratory Arrest While Under the Influence of Mixed Drugs” as the cause of death, though the Penas’ medical expert attributed a significant role to concussive head injury and prolonged restraint.
  • At issue on appeal was whether the individual officer defendants were entitled to qualified immunity on 42 U.S.C. § 1983 deliberate-indifference claims; whether a supervisory-liability claim against the night-shift sergeant could survive summary judgment; and whether Starr County was liable under Monell for an alleged policy or custom of deliberate indifference to inmates’ medical needs.
  • As to the arresting deputies, the court acknowledged that a reasonable jury could find Pena briefly lost consciousness and that Deputy Garcia suspected as much, but distinguished Dyer v. Houston—the plaintiffs’ principal case—on the ground that the detainee in Dyer was in a “drug-induced psychosis” involving far more extreme, erratic, and delusional behavior than Pena’s intoxication and three self-inflicted head strikes. The court held that Dyer and Thompson v. Upshur County did not clearly establish that “any combination of intoxication and three self-inflicted head strikes automatically requires medical care, or informing jail authorities.”
  • For the day-shift officers (Sgt. Lopez and Officer Garza), the court noted it was “a closer question” because they witnessed Pena’s repeated head-strike bursts and possible unconsciousness, but ultimately held that “every reasonable official” would not necessarily have understood that failing to seek medical care under these circumstances was unconstitutional, since Pena’s symptoms could be consistent with “more routine intoxication” and lacked the “ingredient of obvious delusion” present in Dyer and Thompson. Notably, the court stated: “We hold that a reasonable jury could find that failure to seek care under the circumstances showed deliberate indifference, but that it was not clearly established that this was so.”
  • Regarding the night-shift officers, the court found that the symptoms Edgar described—skin discoloration, mouth foam, and breathing complaints—placed the facts “somewhere between Stapleton and Sims,” but that Sims did not make it clearly established that failing to seek medical treatment under these circumstances was unconstitutional. The court noted that Pena was also “yelling and yelling and yelling” at the time and that Edgar himself described the mouth saliva as typical of severe intoxication. The supervisory-liability claim against Sgt. Garza failed because one 19-minute gap between observation checks was insufficient to show a pattern of violations. The Monell claim against the county failed because the Penas could not demonstrate a pattern of similar constitutional violations or an official policy, and their failure-to-train theory fell short of the “extremely narrow” single-incident exception.

• Annie M. v. Aledo Independent School District, 25-10824, appeal from N.D. Tex.
  • Duncan, J. (Richman, Duncan, Oldham) (oral argument), Oldham, J., dissenting; Individuals with Disabilities Education Act, Americans with Disabilities Act
  • Affirming summary judgment in favor of school district on IDEA and ADA claims.
  • Annie M. is a young child with Down syndrome who suffered a cardiac arrest during open-heart surgery as an infant and was without oxygen for 52 minutes. When Annie turned three, her mother contacted the Aledo Independent School District (“AISD”) to enroll her in special-education services under the IDEA. AISD’s diagnostician, Jennifer Williams, proposed a Full and Individual Initial Evaluation (“FIE”) that included both informal play-based cognitive assessments (the DAYC-2) and formal IQ-generating assessments (the ECAD and WPPSI). Annie’s mother objected to the formal cognitive tests because she did not want AISD to “put [Annie] in a box before we really know Annie,” crossed those tests off the revised notice, and consented only to the informal DAYC-2. AISD treated this as a failure to consent to the FIE and declined to move forward, though it remained “ready, willing, and able” to evaluate Annie if her parents fully consented. A state hearing officer ruled that the parents failed to prove the proposed assessments were inappropriate and that AISD had reasonable grounds to override the parents’ lack of consent.
  • At issue on appeal was (1) whether the IDEA permits parents to give “partial” consent—i.e., consent to some but not all assessments in a validly proposed FIE—and still trigger the school district’s obligation to evaluate; (2) whether AISD made reasonable efforts to obtain parental consent; and (3) whether the parents’ ADA claim survived independently.
  • On the IDEA claim, the court rejected the parents’ theory of “partial consent” for three reasons: First, the IDEA’s text “says nothing about ‘partial’ consent” and instead requires consent to a proposed FIE “full stop.” The court agreed with AISD that “nothing in the IDEA’s text contemplates that parents may treat a proposed FIE as a ‘menu of selections.'” Second, the IDEA’s structure places the onus of designing an evaluation on the district, and nothing suggests “that parents may, by selective consent to a proposed FIE, require a district to conduct an initial evaluation using only the assessment tools the parents prefer.” Third, the evidentiary record showed that the DAYC-2 alone might not generate sufficient cognitive data, and the hearing officer found that limiting the evaluation would “deprive evaluators of the ability to pull in additional measures that might be necessary” to accurately identify Annie’s needs.
  • The court also found AISD’s efforts to obtain consent were “reasonable by any measure,” noting that Williams communicated repeatedly with the parents, generated a revised notice, met in person, and even offered to let the parents observe the evaluation and revoke consent at any point. The court quoted the district court’s observation: “This case is an excellent example of what is legally required by the school district and the parents’ right to consent or refuse consent, but not dictate or limit areas in which the district can evaluate for a suspected disability.”
  • On the ADA claim, the majority noted that the district court’s reasoning was incorrect on both stated grounds but affirmed on an alternative basis: because the parents’ ADA claim was entirely duplicative of their failed IDEA claim—depending on the same theory that AISD should have removed the formal cognitive tests—it must also fail.
  • Judge Oldham dissented, contending that AISD denied Annie the chance “to set foot in a classroom” by insisting she submit to IQ tests that the district’s own diagnostician said she would not and could not give because “they are useless for assessing children like Annie.” He contended that the IDEA establishes a “cooperative regime” between parents and schools, and that requiring “blanket consent to any and all tests that the District could hypothetically dream up” is inconsistent with that cooperative scheme. Under his reading, the implementing regulations indicate that consent is provided on an “activity-by-activity basis,” meaning parents can consent to particular evaluations so long as they cover all areas of suspected disability. Judge Oldham also contended that Annie should succeed independently on her ADA claims, criticizing the majority for collapsing the IDEA and ADA inquiries in a manner contrary to the Supreme Court’s instruction that “nothing in the IDEA ‘restrict[s] or limit[s] the rights [or] remedies’ that other federal laws . . . confer on children with disabilities.” He closed with a broader historical point about the misuse of dubious testing on disabled individuals, writing: “I read IDEA and the ADA to end the unquestioning scientism of yesteryear.”

Unpublished decisions

• United States v. Garza-Rodriguez, 25-50928, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry, holding that the defendant’s constitutional challenge foreclosed by binding precedent, including United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019).

• Davis-Clewis v. Department of Veterans Affairs, 26-10083, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Haynes) (no oral argument), administrative law, IFP status, timeliness
  • Dismissing as frivolous pro se appellant’s appeal from dismissal of challenge to a Merit Systems Protection Board (MSPB) decision. The core question was whether equitable tolling of the 30-day filing deadline in 5 U.S.C. § 7703(b)(2) was warranted given her pro se status and difficulty navigating the administrative system.
  • The court found that Davis-Clewis’s November 25, 2024 filing was three weeks late, that her pro se status and unfamiliarity with the legal process generally do not justify equitable tolling under Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991), and that she failed to identify any nonfrivolous issue for appeal.

• Olivera-Romo v. Blanche, 25-60615, petition for review of BIA order
  • per curiam (Wiener, Willett, Wilson) (no oral argument), immigration
  • Denying Mexican citizen’s petition for review of BIA order upholding denial of application for cancellation of removal.
  • Juan De Dios Olivera-Romo, a citizen of Mexico, petitioned for review of the BIA’s decision upholding the denial of his application for cancellation of removal. He argued that his removal would cause exceptional and extremely unusual hardship to his U.S. citizen wife and that the BIA erred in not cumulatively considering the hardship evidence. The court addressed its jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i), noting it lacks jurisdiction to review the factual findings underlying the hardship determination but may review whether established facts satisfy the legal standard under Wilkinson v. Garland, 601 U.S. 209 (2024).
  • To the extent Olivera-Romo disputed the agency’s factual findings, those were unreviewable. He otherwise failed to show the BIA erred in concluding that the difficulties his wife might experience did not rise to the level of exceptional and extremely unusual hardship, and his contention that the BIA failed to cumulatively consider all the hardship evidence was belied by the record.

• Tariq v. Blanche, 25-60537, petition for review of BIA order
  • per curiam (Wiener, Willett, Wilson) (no oral argument), immigration
  • Denying Pakistani citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of asylum, withholding of removal, and CAT protection, and adjustment of status.
  • Ahtesham Tariq, a citizen of Pakistan, petitioned for review of the BIA’s decision dismissing his appeal from an immigration judge’s denial of asylum, withholding of removal, protection under the Convention Against Torture (CAT), and adjustment of status. The main issues were (1) whether the BIA’s adverse credibility determination was supported and (2) whether Tariq’s documentary evidence independently established the requisite state action for deferral of removal under the CAT.
  • The court found the adverse credibility determination was supported by specific and cogent reasons based on the record, which was dispositive of the asylum, humanitarian asylum, and withholding of removal claims. On the CAT claim, the court held that Tariq’s objective documentary evidence did not compel the conclusion that officials would acquiesce to any torture, and his country-conditions evidence from his expert’s report was too general to independently compel that conclusion.

• Diaz Moran v. Cisneros, 26-40312, appeal from S.D. Tex.
  • per curiam (Elrod, Richman, Duncan) (no oral argument), habeas corpus
  • Granting motion of Nicaraguan citizen in immigration detention to proceed IFP on appeal of denial of § 2241 petition, but denying motions for appointed counsel and release pending appeal.

• Louisiana Shrimp Association v. Lutnick, 25-30408, appeal from E.D. La.
  • Elrod, J. (Elrod, Clement, Oldham) (oral argument), administrative law
  • Affirming summary judgment in favor of government defendants on plaintiffs’ challenge to NMFS turtle-excluder rule for shrimpers.
  • The Louisiana Shrimp Association and three individual plaintiffs challenged a 2019 National Marine Fisheries Service (NMFS) rule requiring all skimmer-trawl vessels 40 feet and longer to use turtle-excluder devices (TEDs) as arbitrary and capricious under the Administrative Procedure Act. Plaintiffs raised three arguments: (1) NMFS failed to provide a reasoned explanation and substantial evidence for reversing its earlier policy; (2) NMFS disregarded the Louisiana shrimping industry’s reliance interests; and (3) NMFS failed to consider relevant scientific data and public comments, including data from Louisiana’s bycatch study, a request for a geographic exemption, and comments from Mississippi and the Louisiana Shrimp Association.
  • The court found NMFS articulated a rational connection between the facts found and the decision made. Specifically:
    • NMFS provided substantial evidence that new TED configurations developed and tested since 2013 were effective for skimmer-trawl vessels and that tow-time restrictions were an insufficiently effective alternative given widespread noncompliance (only 28–35% compliance observed) and post-interaction mortality data.
    • NMFS did not improperly disregard reliance interests because its rulemaking history since 1987 consistently demonstrated intent to extend the TED requirement to skimmer-trawl vessels, and it provided a reasoned explanation for the policy change including an exhaustive cost-benefit analysis.
    • NMFS was not required to obtain Louisiana’s bycatch study data where Louisiana did not submit it during the public comment period and only raised the issue two years after the rule was published.
    • NMFS adequately engaged with the public comments from Mississippi and the Louisiana Shrimp Association.
  • Ultimately, the court concluded that plaintiffs’ arguments “simply reflect a disagreement with the way the agency balanced the relevant costs and benefits,” which is insufficient under the APA to sustain a challenge.