He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Yaquinto v. Ward

Docket: 18-10469

Opinion Date: October 23, 2020

Judge: Priscilla Richman Owen

Areas of Law: Bankruptcy

The Fifth Circuit held that the Bankruptcy Court had the equitable power emanating from 11 U.S.C. 105(a) to correct any error it may have committed in changing the date of the first creditors' meeting after the case was transferred out of the Eastern District. In this case, the Objectors reasonably relied on the issuance by the Northern District Bankruptcy Court's Clerk of a second, later date for the section 341(a) initial creditors' meeting and a corresponding new, later deadline for filing objections to discharge. The court also held that the Bankruptcy Court correctly denied debtor's discharge under section 727(a)(4)(A), and that the Bankruptcy Court was correct in finding that debtors' discharge could also be denied under section 727(a)(5).

Pool v. City of Houston

Docket: 19-20828

Opinion Date: October 23, 2020

Judge: Gregg Costa

Areas of Law: Civil Rights, Constitutional Law, Election Law

The City of Houston contends that it is being sued for a so-called "zombie" law. The City's Charter allows only registered voters to circulate petitions for initiatives and referenda, even though the Supreme Court held a similar law unconstitutional twenty years ago. Plaintiffs, Trent and Trey Pool, sought a preliminary injunction allowing them to collect signatures for their anti-pay-to-play petition as well as a declaratory judgment that the Charter's voter-registration and residency provisions are unconstitutional, permanent injunctive relief against enforcement of those provisions, and nominal damages. Plaintiffs also filed an emergency motion for a temporary restraining order (TRO), which would allow them to circulate the petition through the deadline of July 9, 2019. The district court granted a TRO, allowing plaintiffs to circulate the petition for the next week, but concluded that plaintiffs had not demonstrated an injury sufficient to support standing with regard to future petitions. The district court later dismissed plaintiffs' remaining claims. Although the City now concedes that the qualified-voter requirement is unconstitutional, at issue is whether plaintiffs may obtain a permanent injunction preventing its enforcement. The Fifth Circuit held that, although there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston's qualified-voter requirement gives Trent Pool standing to seek an injunction that would guard against continued chilling of his speech. The court also held that the City has not met its heavy burden of showing that plaintiffs' challenges are moot. Therefore, because there is a reasonable concern that the City might enforce its unconstitutional Charter provision, the court reversed the judgment dismissing this case and remanded for further proceedings.

Angulo v. Brown

Docket: 19-40887

Opinion Date: October 23, 2020

Judge: Edith Brown Clement

Areas of Law: Civil Rights, Constitutional Law, Personal Injury

Plaintiff filed suit against the United States and Customs and Border Patrol (CBP) officers for injuries suffered during an incident at the International Port of Entry Gateway Bridge in Brownsville, Texas. The Fifth Circuit affirmed the district court's grant of summary judgment in favor of the CBP officers based on qualified immunity. In this case, the court found that plaintiff was neither arrested nor unreasonably seized, and the officers did not use excessive force. The court also affirmed the district court's dismissal of plaintiff's claims against the United States for lack of subject-matter jurisdiction based on the customs-duty exception to the Federal Tort Claims Act (FTCA).

Arnold v. Williams

Docket: 19-30555

Opinion Date: October 23, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Civil Rights, Constitutional Law

The Fifth Circuit withdrew its prior opinion and substituted the following opinion. Plaintiff filed suit against defendant under 42 U.S.C. 1983 for violations of various constitutional rights and under Louisiana tort law. In this case, after defendant approached, questioned, and reached to grab plaintiff outside of his home, plaintiff fled, fell off a fence, and dislocated his shoulder. The Fifth Circuit reversed the district court's dismissal of the unreasonable search claim and remanded for the district court to consider qualified immunity before proceeding to the merits of the case. The court held that plaintiff's complaint plausibly alleges a trespassory search of his home where the officer's search of the curtilage of plaintiff's home was unreasonable insofar as it infringed on plaintiff's reasonable expectation of privacy and exigent circumstances were lacking. However, the court held that the complaint lacks allegations that would allow the court to draw all reasonable inferences in plaintiff's favor and to conclude that he plausibly alleged a seizure within the meaning of the Fourth Amendment. Therefore, the court affirmed the dismissal of the unreasonable seizure claim. The court affirmed the district court's dismissal of plaintiff's remaining section 1983 claims, holding that plaintiff failed to state a false arrest/false imprisonment claim because he failed to plausibly allege that his ultimate arrest was false; plaintiff failed to state a claim for malicious prosecution because, as the district court correctly observed, there is no freestanding right under the Constitution to be free from malicious prosecution; and plaintiff failed to state a claim for a violation of procedural and substantive due process because resort to a generalized remedy under the Due Process Clause is inappropriate where a more specific constitutional provision provides the rights at issue. The court also affirmed the district court's dismissal of plaintiff's claim for intentional infliction of emotion distress under Louisiana law, the district court's grant of summary judgment, and the three evidentiary rulings appealed by plaintiff.

Nolasco v. Crockett

Docket: 19-30646

Opinion Date: October 23, 2020

Judge: E. Grady Jolly

Areas of Law: Immigration Law

The Fifth Circuit granted the petition for panel rehearing. The court withdrew its prior opinion on May 6, 2020 and substituted the following opinion. Since the prior opinion issued, the Supreme Court decided Nasrallah v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory term "final order of removal." Without expressing an opinion as to whether Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000), the court applied Melendez v. McAleenan, 928 F.3d 425 (5th Cir.), cert. denied, 140 S. Ct. 561 (2019), to this case. Plaintiff filed suit seeking review of USCIS's legal determination declaring him ineligible for adjustment to permanent status. Although plaintiff had been granted Temporary Protected Status (TPS), he had entered the United States illegally, which would ordinarily bar the adjustment of status. The court dismissed plaintiff's complaint with prejudice; reversed the district court's holding that it lacked jurisdiction; and asserted the court's own jurisdiction over plaintiff's claim. The court followed Melendez in holding that plaintiff sought review of the government's legal interpretation of statutory provisions that govern TPS and adjustment of status. The court explained that, because this is a "pure legal task," it is a nondiscretionary decision that is not barred by the jurisdiction-stripping statute, and thus the district court erred in concluding that it did not have jurisdiction to hear plaintiff's claims. The court also held that plaintiff has failed to state a legally cognizable claim under Melendez. The court explained that those with TPS who first entered the United States unlawfully are foreclosed from applying for adjustment of status as a matter of law.