Take the Fifth

Designated for publication

• Konan v. United States Postal Service, 23-10179, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Douglas) (oral argument on original setting, prior to Supreme Court remand); Federal Tort Claims Act
  • On remand from U.S. Supreme Court, affirming dismissal of plaintiff’s tort claims arising from refusal to deliver mail, modified to be dismissal without prejudice.
  • Lebene Konan alleged that USPS mail carrier Raymond Rojas and Postmaster Jason Drake intentionally refused to deliver mail to two rental properties she owns in Euless, Texas, motivated by racial animus. She brought state-law tort claims (nuisance, tortious interference, conversion, and IIED) against the United States under the FTCA, as well as equal protection claims against Rojas and Drake under 42 U.S.C. §§ 1981 and 1985. The district court dismissed every claim with prejudice. The Fifth Circuit previously reversed the FTCA dismissal, but the Supreme Court vacated, holding that the FTCA’s postal exception, 28 U.S.C. § 2680(b), “covers suits against the United States for the intentional nondelivery of mail.”
  • At issue on appeal was whether all of Konan’s claims are barred by the postal exception; which arguments Konan adequately preserved; and whether the district court’s with-prejudice dismissal of the FTCA claims was proper.
  • Konan conceded that her state-law tort claims predicated on respondeat superior are barred by the postal exception, and the court agreed their dismissal for lack of subject-matter jurisdiction was proper. The court also reaffirmed dismissal of the §§ 1981 and 1985 claims against Rojas and Drake, noting the Supreme Court denied Konan’s cross-petition on those claims.
  • The court declined to consider Konan’s new argument—raised for the first time on remand—that the United States is directly liable for negligent supervision. However, it corrected the district court’s with-prejudice dismissal, holding that a dismissal under § 2680(b) is jurisdictional and “must be without prejudice to refiling in a forum of competent jurisdiction,” citing Spivey v. Chitimacha Tribe of Louisiana. The modification “has a limited consequence”: it does not foreclose Konan from filing a new action, including a possible negligent-supervision claim, though the court expressed no view on the merits of any such claim.

• Sealed Appellee v. Sealed Juvenile, 24-60348, appeal from S.D. Tex.
  • Smith, J. (King, Smith, Ramirez) (oral argument), King, J., concurring; criminal, Second Amendment
  • Affirming conviction of possession or transfer of a machinegun.
  • A juvenile was charged with two counts of possession or transfer of a machinegun under 18 U.S.C. §§ 922(o) and 924(a)(2) for possessing Glock switches—machinegun-conversion devices. The government certified federal jurisdiction under 18 U.S.C. § 5032, representing that Mississippi lacked a law regulating possession or transfer of machineguns at the time of the alleged conduct. After the district court denied motions to dismiss on jurisdictional and Second Amendment grounds, Juvenile admitted to the charges, reserving his Second Amendment challenge on appeal.
  • At issue on appeal was (1) whether the district court had jurisdiction given the § 5032 certification; (2) whether § 922(o) violates the Second Amendment facially and as applied; and (3) whether ATF exceeded its authority in classifying a Glock switch as a “machinegun.”
  • On jurisdiction, the court found that Mississippi’s handgun statute (§ 97-37-14) does not regulate Glock switches because a Glock switch cannot fire any “shot, bullet, or other missile.” Mississippi did not enact a machinegun conversion device law (§ 97-37-39) until July 1, 2024—after the alleged conduct. Mississippi’s concealed-carry ban (§ 97-37-1) also did not apply because concealment was not charged. The government’s § 5032 certification was therefore adequate.
  • On the Second Amendment, the court acknowledged that Glock switches are Second Amendment “Arms”—”analytically similar to silencers because they make a firearm significantly more effective”—and the government conceded the point at oral argument. However, the court held that Juvenile’s challenge fails at Step 1 of Bruen because machineguns are “dangerous and unusual weapons” not protected by the Second Amendment, as established in Hollis v. Lynch and affirmed post-Bruen in United States v. Wilson.
  • On the statutory challenge to ATF’s classification authority, the court held that Juvenile waived his right to appeal this non-jurisdictional, non–Second Amendment issue. Even absent waiver, the challenge would fail under plain-error review because Juvenile cited no relevant legal authority.
  • Judge King concurred, writing separately to note that, because Juvenile’s challenge is effectively a facial challenge, the court should proceed directly to binding precedent in Wilson and Hollis rather than engaging in the full Bruen two-step analysis. She further observed that even without precedent, a facial challenge would fail because “[t]he statutory definition of ‘machinegun’ sweeps in . . . weapons such as the ‘massive guns mounted on military aircraft and anti-aircraft batteries,'” which are not bearable weapons. “Because these massive guns ‘are not bearable weapons, the regulation of at least those weapons is consistent with the Second Amendment,'” so “there is a set of circumstances under which § 922(o) is valid, and Juvenile’s facial challenge has no merit.”

• Moreau v. Harris County, Texas, 25-20045, appeal from S.D. Tex.
  • Higginson, J. (Smith, Wiener, Higginson) (oral argument), Fair Labor Standards Act
  • Affirming judgment for defendants on FLSA overtime claims.
  • Plaintiffs—lieutenants and captains in the Harris County Sheriff’s Office (HCSO)—alleged the County failed to pay overtime in violation of the FLSA. Harris County argued that plaintiffs were exempt administrative and executive employees. The magistrate judge granted partial summary judgment, concluding that criminal justice lieutenants and all captains were exempt, and the remaining 29 law enforcement lieutenant claims went to trial. The jury found all remaining lieutenants were exempt under both the administrative and executive exemptions.
  • At issue on appeal was (1) whether plaintiffs were paid on a salary basis; (2) whether criminal justice lieutenants qualified for the administrative exemption at summary judgment; (3) whether the magistrate judge erred in the jury charge, including by allowing the jury to find both exemptions applied; and (4) whether the magistrate judge erred in denying post-trial motions for judgment as a matter of law or a new trial.
  • On the salary-basis test, the court followed Escribano v. Travis County and the Fourth Circuit’s Kelly v. City of Alexandria, holding that “actual practice is the cornerstone inquiry” and that a policy permitting impermissible deductions is insufficient by itself to defeat the exemption. The record showed Harris County paid plaintiffs a consistent, predetermined amount each pay period with no evidence of actual deductions.
  • On the criminal justice lieutenants, the court found their “primary duty is the ‘administration of HCSO’s jails'”—making sure “everything runs properly on a day-to-day basis”—which constitutes management or general business operations qualifying for the administrative exemption. The court noted that “high-level employees who perform some first responder duties, like police lieutenants or fire chiefs, can nonetheless be exempt executives if their primary duty is managerial.”
  • On the jury charge, the court held the magistrate judge’s instructions tracked the Fifth Circuit Pattern instructions and correctly stated the law. As to whether the jury could find both exemptions applied—raising the question whether an employee can have two “primary duties”—the court acknowledged plaintiffs made a “compelling argument” but found the issue “subject to reasonable debate” and thus not plain error. On the Rule 50(b) and 59 motions, the court applied a deferential standard and concluded sufficient evidence supported the jury’s findings on both exemptions.
  • The court left open a novel FLSA question: whether the “primary duty” requirement means an employee can qualify for only one exemption at a time, noting the combination exemption in 29 C.F.R. § 541.708 and competing circuit authority, but ultimately concluding that because the issue was “subject to reasonable debate,” it was not plain error.

• Transportation Consultants, Inc. v. Certain Underwriters at Lloyd’s, London, 25-30372, appeal from E.D. La.
  • Higginson, J. (Stewart, Higginson, Ho) (oral argument withdrawn), insurance, arbitration
  • Affirming denial of motion to compel arbitration against domestic insurers and order compelling foreign insurers to arbitrate, vacating order lifting stay as to domestic insurers, and remanding for reconsideration of whether to stay litigation against domestic insurers.
  • Transportation Consultants, Inc. owns property in Louisiana insured under a surplus lines commercial property policy with nine domestic and two foreign insurers, arising from Hurricane Ida. The policy contains an arbitration clause and a Contract Allocation Endorsement providing that the contract “shall be constructed as a separate contract between the Insured and each of the Underwriters.” After a coverage dispute, the Insurers removed the case to federal court under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and moved to compel arbitration. Following the Louisiana Supreme Court’s decision in Police Jury of Calcasieu Parish v. Indian Harbor Insurance Co., the district court reversed its order compelling arbitration as to the domestic insurers but maintained arbitration with the foreign insurers.
  • At issue on appeal was whether the domestic insurers can compel arbitration under the Convention or equitable estoppel; and whether litigation against the domestic insurers should be stayed pending arbitration with the foreign insurers.
  • Applying binding precedent from Town of Vinton v. Indian Harbor Insurance Co., the court held that the policy’s endorsement language creates separate bilateral agreements between the insured and each insurer. Because the domestic insurers’ agreements do not involve a non-American party, they fall outside the Convention. Under the Louisiana Supreme Court’s Police Jury decision, Louisiana law prohibits arbitration clauses in insurance contracts, and equitable estoppel cannot circumvent that statute.
  • Following its recent unpublished decision in Crescent City Surgical Operating Co. v. Interstate Fire & Casualty Co., the court held that the district court should reconsider whether to stay the domestic insurers’ litigation pending resolution of arbitration with the foreign insurers, applying the Waste Management/Rainier factors: (1) same operative facts, (2) inherently inseparable claims, and (3) critical impact of litigation on arbitration. The court remanded because the district court had lifted the stay before Town of Vinton and Crescent City were decided and the parties had not fully briefed the stay factors.

• Ramirez v. City of Texas City, 25-40475, appeal from S.D. Tex.
  • Southwick, J. (Southwick, Graves, Wilson) (oral argument), taking, due process, damages, attorneys’ fees, Seventh Amendment
  • Vacating denial of jury request, and remanding for jury trial, pretermitting challenges to damages award and denial of attorneys’ fees.
  • Michael Ramirez owned a house in Texas City that caught fire in April 2022. The City issued a notice deeming the structure substandard and a “clear and imminent danger,” then demolished it in May 2023 without further notice, despite Ramirez’s architect having submitted a proposed repair plan. Ramirez sued, asserting takings and procedural due process claims. After removal to federal court, Ramirez included “JURY REQUESTED” language in his Certificate of Interested Parties and in at least 13 subsequent filings, and both parties signed a joint case management plan stating “[a] jury demand was made prior to removal, and it was timely.” The district court initially scheduled a jury trial but, one week before trial, converted it to a bench trial. After the bench trial, the court found a due process violation but awarded only nominal damages.
  • At issue on appeal was (1) whether the district court erred in denying Ramirez a jury trial; (2) whether the court erred in awarding only nominal damages; and (3) whether Ramirez qualified as a prevailing party for attorneys’ fees.
  • The court resolved the case under Rule 39(b), which provides that even when Rule 38 is not scrupulously followed, “the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.” A Rule 39(b) motion “‘should be favorably received unless there are persuasive reasons to deny it'” and those reasons must be “‘strong and compelling.'” All five Daniel factors favored Ramirez: the issues were “quintessential jury issues” well within a jury’s comprehension; the court itself had scheduled a jury trial and the City had at least two months’ notice; any prejudice was to Ramirez in being deprived of his right, not to the City; the formal Rule 39(b) motion was not a delaying tactic but rather was prompted by the district court’s last-minute change of course; and Ramirez had a “compelling and sufficient reason” for any tardiness—he reasonably believed his initial jury demand was sufficient given his repeated filings.
  • The court emphasized that “Evading complete forfeiture of a jury right does not require perfect compliance. Solicitude for the Seventh Amendment requires more before the right is lost.” This “is not a case where the failure to make a proper demand for a jury was due to ‘mere inadvertence'”; Ramirez’s diligent, repeated attempts to request a jury were “certainly beyond the ‘mere inadvertence’ and incompetence that we have found to be a proper ground for denying a Rule 39(b) motion.”
  • On damages, the court provided guidance for remand, explaining under Carey v. Piphus that damages in a procedural due process case must flow from the defective procedures themselves. The court noted that the destruction of Ramirez’s personal property inside the house—valued at roughly $15,000—was “arguably a harm that flowed from the violation of his procedural due process rights” because “[w]ith proper notice, part of the process which he was due, Ramirez perhaps could have saved his personal property.” The court left the ultimate damages question for the jury on remand.

Unpublished decisions

• United States v. Escobedo-Gomez, 25-10449, appeal from N.D. Tex.
  • per curiam (Wiener, Haynes, Graves) (no oral argument), Graves, J., concurring in judgment only (w/o op.); criminal, hearsay, Confrontation Clause, witness testimony, sentencing
  • Affirming illegal reentry conviction and sentence.
  • At issue on appeal was (1) whether the district court erred in denying defendant’s motion to dismiss an illegal-reentry indictment where defendant argued his prior expedited removal order was invalid because he had never formally “applied for admission” to the United States; (2) whether the district court erred in admitting certain exhibits over hearsay and Confrontation Clause objections; (3) whether the district court’s questioning of government witnesses denied defendant a fair trial; and (4) whether the district court improperly considered defendant’s decision to go to trial at sentencing.
  • On the motion to dismiss, the court held that under the INA, an “applicant for admission” includes any alien present in the United States who has not been admitted, so Escobedo-Gomez was properly subject to expedited removal and the underlying removal order was valid. On the evidentiary issues, the court found any error harmless given the overwhelming evidence of guilt. The court concluded the district judge’s questioning of witnesses merely sought to clarify testimony and did not improperly confuse the functions of judge and prosecutor. Finally, the court found the district court did not improperly rely on defendant’s decision to go to trial; the judge clarified that fact did not enter the sentencing decision, and the court provided ample independent reasoning for the sentence.

• United States v. Wooten, 25-11148, appeal from N.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Mullen v. Mullin, 25-30604, appeal from E.D. La.
  • per curiam (Smith, Haynes, Engelhardt) (no oral argument), ex post facto clause, bill of attainder clause, jurisdiction, administrative law
  • Affirming in part and remanding in part dismissal of claims challenging denial of mariner credentials, remanding to convert dismissal to without prejudice.
  • A pro se vessel captain challenged the Coast Guard’s retroactive application of 46 U.S.C. § 7511 (denying merchant mariner credentials to convicted sex offenders) and § 7704a (authorizing suspension and revocation for sexual assault findings) as unconstitutional under the Ex Post Facto and Bill of Attainder Clauses. Two distinct sets of claims were at issue: (1) claims challenging the Coast Guard’s ongoing “Suspension and Revocation” (S&R) proceedings seeking to revoke the captain’s Merchant Mariner Credential (MMC) based on a 2006 forcible rape conviction, and (2) claims challenging the Coast Guard’s denial of his application for a raise of grade of his MMC.
  • As to the S&R proceedings, the court agreed the district court lacked subject-matter jurisdiction because the S&R statutory and regulatory scheme—providing for an ALJ hearing, appeal to the Commandant, further appeal to the NTSB, and ultimately review in a federal court of appeals—constitutes a special statutory review scheme that implicitly precludes district court jurisdiction, and no final agency action had yet occurred. The court remanded, however, to correct the dismissal of those claims from “with prejudice” to “without prejudice.”
  • As to the raise-of-grade application claims, the court disagreed with the district court’s jurisdictional ruling, finding that the Coast Guard’s administrative denial of the application constituted “final agency action” under the APA and that no statutory scheme implicitly precluded district court review. Nevertheless, the court affirmed the dismissal with prejudice on the merits, agreeing with the reasoning of Reid v. Mayorkas that § 7511 applies to credential renewals and raises of grade, not just original applications, and that any retroactive effect reflects clear congressional intent. The court also found that Mullen received constitutionally sufficient process.

• Chandan v. Life Time Fitness, Inc., 25-50673, appeal from W.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (no oral argument), breach of contract, sec. 1981
  • Affirming summary judgment dismissal of breach of contract and racial discrimination claims.
  • At issue on appeal was whether the district court erred in granting summary judgment to Life Time on plaintiff’s claims for breach of contract, racial discrimination under 42 U.S.C. § 1981, and public accommodation discrimination arising from the termination of his gym membership; and whether the district court abused its discretion in denying plaintiff’s motion to compel discovery and motion to continue.
  • On the breach of contract claim, the court found that Life Time’s membership agreement explicitly reserved the right to terminate for any reason, including conduct it deemed inappropriate, and Chandan failed to provide evidence of breach. On the discrimination claims, the court held that even assuming Chandan could establish a prima facie case, he provided no evidence that Life Time’s stated reasons—his interaction with a minor at the pool and his subsequent Facebook messages to management—were pretextual. The court also found no abuse of discretion in denying the discovery motion, which was filed nearly three months past the discovery deadline with no justification for the delay.

• United States v. Strickland, 26-10144, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence.
  • At issue on appeal was whether (1) 18 U.S.C. § 3583(g) is unconstitutional in light of United States v. Haymond, 588 U.S. 634 (2019), and (2) whether 18 U.S.C. § 3583(e) permits consideration of a defendant’s breach of trust when imposing a supervised-release revocation sentence.
  • Strickland conceded that both arguments were foreclosed by existing circuit precedent—United States v. Garner and United States v. Cano—making summary affirmance appropriate. The district court’s judgment revoking supervised release and imposing 24 months’ imprisonment was affirmed.

• United States v. Gibbs, 26-10185, appeal from N.D. Tex.
  • per curiam (Clement, Engelhardt, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.