Take the Fifth: Oct. 26, 2020 opinions

Posted on by tadbartlett

Designated for publication

  • Londono-Gonzalez v. Barr, 16-60766, petition for review of BIA order, on remand from U.S. Supreme Ct.
    • Elrod, J. (Higginbotham, Elrod, Duncan), immigration, equitable tolling
    • Denying petition for review of BIA order. Court held that “uncertain legal terrain does not create an obstacle that stands in the way of an individual meeting the motion to reopen deadline,” for purposes of equitable tolling of that deadline. The petitioner here had filed his motion to reopen prior to the 5th Circuit decision he claimed revealed his right to reopen and that was the basis for equitable tolling. The Court held that equitable tolling was not available where the petitioner had not filed his motion to reopen until three and a half years after the decisions that actually were the intervening legal authority providing the basis for his arguments to reopen.
  • FDIC v. Belcher, 19-31023, appeal from E.D. La.
    • Stewart, J. (Stewart, Clement, Costa), administrative subpoena, federal functional regulator
    • The Federal Deposit Insurance Corporation brought this action to enforce and administrative subpoena that ordered the defendant to submit to a deposition. The district court ordered defendant to submit to the deposition; defendant appealed from that order, and the district court denied his motion to stay pending appeal and defendant sat for the deposition. Nevertheless, the Court vacated the district court’s order.
    • At issue is whether the FDIC is “the appropriate Federal functional regulator” of First NBC Bank under 15 U.S.C. § 7215(b)(5)(B)(ii)(II), such that it would not have been an ethical violation for the Public Company Accounting Oversight Board (“PCAOB”) to share the transcripts of an earlier deposition of defendant with the FDIC prior to the FDIC’s subpoena to depose defendant. The Court held that, under the “federal functional regulator” definition in 15 U.S.C. § 6809, the FDIC, acting in its capacity as the Bank’s receiver, as opposed to its corporate or governing capacity, was not the federal functional regulator of the Bank. “The FDIC, however, asks us to interpret this language in a way that would establish two appropriate Federal functional regulators in this case: the FDIC, as the appropriate Federal functional regulator of the Bank, and the Federal Reserve, as the appropriate Federal functional regulator of the Holding Company. Such a conclusion would contravene the language of the statute.”
    • “[B]ecause the FDIC was acting in its capacity as the Bank’s receiver when it acquired the confidential documents from the PCAOB, not as the Bank’s regulator,” it could not be deemed the federal functional regulator when it received the transcripts.
  • Liebersat v. Sundance Energy, Inc., 20-30121, appeal from W.D. La.
    • Clement, J. (Smith, Clement, Oldham), royalties, personal jurisdiction
    • Affirming dismissal of claims for royalties against certain mineral producers for lack of personal jurisdiction. Court held that it had neither general nor specific personal jurisdiction over Noble, Sundance, or SEA Eagle.
    • The Court rejected plaintiff’s argument that, under a solidary liability theory, the contacts with the forum of one solidary defendant could be imputed to another solidary defendant. “Sharing liability is not the same as sharing an identity.”
    • As to the nature of the defendants’ contacts with the forum state for purposes of specific jurisdiction, the Court held that “Noble’s alleged contacts with Louisiana include maintaining an active business presence in Louisiana, ratifying the Sundance Defendants’ actions, negotiating the lease in Louisiana (imputed through Clayton Williams), and sending royalties for over 30 years to Louisiana,” but that plaintiff’s claims did not arise from any of these activities. Where the conduct at issue happened in 2017-2018, the Court held that no activities occurring prior to that time, including as a predecessor-in-interest, could be the basis for specific personal jurisdiction.
    • As to the second group of defendants, which did include some activities during the assigned time period, the Court held there were not sufficient minimum contacts with Louisiana: “The primary activities contemplated by the contract [albeit involving a Louisiana property] were carried out in Texas, and administration of the contract (sending of payments, etc.) was done in Colorado.” The Court noted, “[T]he Sundance Defendants (1) assumed a contract with a Louisiana resident, (2) sent division orders to Louisiana, (3) sent checks to Louisiana, and (4) engaged in written communication with the plaintiffs, who lived in Louisiana. Without more, a court may not constitutionally exercise specific personal jurisdiction.”

Unpublished

  • U.S. v. Bell, 19-10498, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Ho), criminal, search and seizure
    • Vacating district court’s order to suppress evidence, and remanding for further proceedings.
  • U.S. v. Romero, 19-30236, appeal from M.D. La.
    • per curiam (Graves, Costa, Engelhardt), criminal, search and seizure
    • Affirming district court’s denial of motion to suppress wiretap evidence.
  • U.S. v. Thompson, 19-30706, appeal from W.D. La.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing, guilty plea, First Step Act
    • Affirming conviction and sentence under First Step Act.
  • Illas v. Barr, 19-60607, petition for review of BIA order
    • per curiam (Haynes, Willett, Ho), immigration, jurisdiction
    • Denying in part and dismissing in part for lack of jurisdiction petition for review of BIA order dismissing appeal of IJ order denying application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Parales-Perez, 20-10148, appeal from N.D. Tex.
    • per curiam (Smith, King, Wilson), criminal, guilty plea
    • Affirming conviction and sentence.
  • Berry v. Sheriff’s Office Ouachita Parish, 20-30243, appeal from W.D. La.
    • per curiam (King, Smith, Wilson), racial discrimination, retaliation
    • Affirming district court’s denial of plaintiff’s summary judgment motion on his retaliation claim; reversing district court’s grant of defendant’s summary judgment motion on retaliation claim; and affirming district court’s grant of defendant’s summary judgment motion on racial discrimination claim.
  • U.S. v. Swanger, 20-40201, appeal from S.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal
    • Affirming district court’s conviction and sentence.