Designated for publication
- Domanic v. Christian Brothers Automotive Corp., 25-20486, appeal from S.D. Tex.
- Duncan, J. (Duncan, Oldham, Wilson) (oral argument), Oldham, J., concurring in judgment; § 1981
- Affirming summary judgment dismissal of § 1981 claims based solely on religious discrimination.
- Christian Brothers Automotive Corporation is a faith-based auto-repair franchisor that grants franchises only to professing Christians. All of its more than 250 franchisees—including at least two ethnic Jews—profess the Christian faith. Evan Domanic, who is both ethnically and religiously Jewish, applied for a franchise in 2020. During the application process, a company employee asked Domanic about his faith; when Domanic said he was Jewish, Christian Brothers terminated the process. Domanic sued under 42 U.S.C. § 1981, claiming race discrimination. The district court granted Christian Brothers summary judgment, finding the company’s franchise policy constituted religious—not racial—discrimination and was therefore not cognizable under § 1981.
- At issue on appeal was (1) whether discrimination against Jews is ipso facto racial discrimination under § 1981, even when the differential treatment is motivated purely by religion and not ancestry; and (2) whether there was evidence that Christian Brothers’s Christian-only franchise policy was a pretext for ethnic discrimination against Jews.
- Section 1981 has long been understood to forbid racial discrimination in private contracting, and its conception of “race” is broad enough to encompass discrimination based on Jewish ancestry or ethnic characteristics. However, it is “equally settled that § 1981 does not forbid religious discrimination.” The court declined Domanic’s “novel argument” that discrimination against Jews is inherently racial discrimination regardless of the discriminator’s motive, reasoning that accepting it “would vitiate the established principle that § 1981 does not touch religious discrimination” and would amount to recognizing a special exception “for one faith only—Judaism.”
- The court found persuasive support in two Seventh Circuit decisions. In Bachman v. St. Monica’s Congregation, 902 F.2d 1259 (7th Cir. 1990), the court held that, “while for this purpose Jews constitute a race, it is not the case that every preference based on religion is a discrimination against a race.” In Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, 772 F.3d 443 (7th Cir. 2014), the court similarly distinguished discrimination based on Jewish ancestry from hostility to a particular Jewish religious sect.
- On the facts, all evidence pointed to religious—not ethnic—discrimination: Christian Brothers franchises only to professing Christians and its franchisees include ethnic Jews who meet that religious qualification. “No evidence whatsoever suggests Christian Brothers, behind the façade of a religious policy, is in reality engaging in covert antisemitism. If any evidence suggested otherwise, Domanic’s § 1981 claim would have to go to the jury. None does, though.”
- Judge Oldham concurred in judgment, agreeing with the bottom-line conclusion, but wrote separately on two points. First, he argued the court was “required to reach the ministerial exception at the outset” as an immunity from suit, but acknowledged the record was insufficiently developed to determine whether Christian Brothers franchisees serve as “messengers or teachers” of the company’s faith so as to qualify. He would have denied the company’s invocation of the Hosanna-Tabor exception “without prejudice to the company’s right to raise it later,” noting “[a]nd as it turns out, there will be no later because the company wins at summary judgment on other grounds.”
- Second, Judge Oldham expressed broader skepticism about applying the McDonnell Douglas burden-shifting framework at summary judgment and to § 1981 claims. He noted that the test was “judicially created ‘out of whole cloth'” with “‘no basis in the text of Title VII or any other source of law.'” He contended that applying it at summary judgment “conflicts with Federal Rule of Civil Procedure 56,” because McDonnell Douglas requires plaintiffs to prove prima facie discrimination by a preponderance of the evidence, while Rule 56(a) contains no such requirement.
- Judge Oldham further contended that extending McDonnell Douglas to § 1981 claims is even more problematic because the two statutes “have entirely distinct texts, histories, common law backgrounds, and purposes,” including different causation standards. The mismatch “encourages courts to take a made-up test . . . and add new made-up factors that similarly have no basis in any source of law.” He urged: “We should not push McDonnell Douglas’s square peg into § 1981’s round hole” and called on the en banc court to reconsider the test’s use at summary judgment generally and in § 1981 cases specifically.
Unpublished decisions
- United States v. Hidalgo, 25-10992, appeal from N.D. Tex.
- per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- United States v. Amador, 25-40787, appeal from S.D. Tex.
- per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
- Affirming denial of motion to reconsider resentencing.
- At issue on appeal was (1) whether Amador’s appeal of the district court’s denial of his motion for reconsideration of a resentencing ruling was timely, and (2) whether the district court had jurisdiction to entertain the motion for reconsideration. Amador had been convicted in 2009 of a controlled-substance conspiracy and a firearm offense; on a prior appeal, the Fifth Circuit affirmed in part, vacated in part, and remanded for resentencing on the firearm count. After resentencing, Amador filed a late motion for full resentencing on both counts, which was denied, and he later moved for reconsideration.
- The court found the appeal timely because the district court’s grant of in forma pauperis status constituted an implicit finding of excusable neglect extending the appeal deadline under Federal Rule of Appellate Procedure 4(b)(4). On the merits, however, the court held the district court lacked statutory authority—and thus jurisdiction—to entertain the motion for reconsideration, citing United States v. Early, 27 F.3d 140 (5th Cir. 1994), and 18 U.S.C. § 3582(b)–(c).
- United States v. Roseberry, 25-50699, appeal from W.D. Tex.
- per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, restitution
- Affirming imposition of mandatory $5,000 Justice for Victims of Trafficking Act (JVTA) special assessment, rejecting argument that the court should have continued sentencing because the JVTA was set to expire 49 days later. Defendant also raised an ineffective-assistance-of-counsel claim based on counsel’s failure to seek a continuance or object.
- Reviewing for plain error, the court held Roseberry failed to show clear or obvious error because he cited no authority supporting the notion that a district court errs by not continuing sentencing to avoid a then-applicable special assessment. The court further noted the JVTA’s sunset date was subsequently extended and then eliminated, so Roseberry could not show the alleged error affected his substantial rights. The ineffective-assistance claim was rejected as premature because the record was insufficiently developed.
- United States v. Frazier, 26-10087, appeal from N.D. Tex.
- per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- United States v. Perez, 26-10278, appeal from N.D. Tex.
- per curiam (Richman, Haynes, Graves) (no oral argument), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- United States v. Jackson, 26-50182, appeal from W.D. Tex.
- per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, compassionate release
- Dismissing appeal from denial of motion for compassionate release, and affirming denial of motion to reconsider that denial.
- Jackson, a federal prisoner serving 142 months for four counts of interference with commerce by robbery and one count of brandishing a firearm during a crime of violence, appealed (1) the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), and (2) the denial of his motion for reconsideration of that denial.
- As to the compassionate-release denial, the court found Jackson’s notice of appeal untimely—filed more than 14 days after the order and outside the 30-day extension window—and dismissed that portion of the appeal, holding the mandatory time limit must be enforced when the Government invokes it. As to the motion for reconsideration (construed under Federal Rule of Civil Procedure 60(b)), the court found Jackson failed to demonstrate Rule 60(b) relief was warranted and affirmed the district court’s denial.
- Lopez-Martinez v. Blanche, 26-60290, petition for review of BIA order
- per curiam (Smith, Southwick, Oldham) (no oral argument), immigration
- Denying Cuban citizen’s petition for review of BIA order summarily dismissing her appeal as untimely and rejecting her equitable-tolling claim. She also challenged the BIA’s denial of her motion for reconsideration.
- The court found no record evidence of exceptional circumstances warranting equitable tolling and no abuse of discretion in the BIA’s summary dismissal. The court declined to consider the denial of the motion for reconsideration because Lopez-Martinez had not petitioned for its review.
