Take the Fifth

Designated for publication

• Stelly v. Duriso, 19-20160, appeal from S.D. Tex.
  • Haynes, J. (Jones, Haynes, Ho), Ho. J., concurring in part; intentional infliction of emotional distress, employment discrimination
  • Vacating district court’s default judgment in favor of plaintiff on intentional infliction of emotional distress (“IIED”) claim against individual defendant in lawsuit against unions and maritime association for employment discrimination and against individual defendant for IIED, and remanding for further proceedings.
  • The Court held that the individual defendant could appeal the default judgment without first moving in the district court to set aside the default judgment under Rule 60. “To be sure, in most circumstances, a party will benefit from using such a motion to develop the record. The defaulting party will be unable to raise any fact questions that were not brought before the district court. Unpled affirmative defenses are also off the table. But the lack of a Rule 60(b) motion is not an absolute barrier: if the existing record and pleadings do not support the judgment, the defaulting party can prevail on appeal without having raised the issues first in the district court with a Rule 60(b) motion.” (Internal citations omitted).
  • The Court then held that the plaintiff could not bring an IIED claim if she has another cause of action to address the sexual harassing behavior, that under Texas law the IIED claim is a “gap-filling” cause of action. “In particular, the Texas Supreme Court has noted that IIED claims against both employers and individual employees premised on sexually harassing conduct can be foreclosed by alternative causes of action under Title VII or the Texas Commission on Human Rights Act (‘TCHRA’).”
  • Judge Ho concurred in all parts of the opinion except the final part regarding the availability of the IIED claim, which he would certify to the Texas Supreme Court.

• Quezada v. IRS, 19-51000, appeal from W.D. Tex.
  • Jolly, J. (Jolly, Jones, Willett), timeliness, tax
  • Vacating a judgment allowing an assessment of taxes, and remanding for further proceedings, where IRS had, in 2014, assessed Mr. Quezada for tax deficiencies dating to 2005.
  • Court held that the Internal Revenue Code’s three-year statute of limitations, which runs from the date “the return” is filed, is triggered by the filing of any “forms containing data sufficient to (1) show that he was liable for the taxes assessed and (2) calculate the extent of his tax liability.”
  • The Court rejected the argument that the Form 945, required for reporting backup withholding, was the only form that could be considered as a “return” for purposes of the deficiencies in backup reporting, as the taxpayer’s 1040 and 1099 forms contained the information necessary to show liability for the taxes assessed and calculate extend of tax liability. “[T]he wrong form can be ‘the return’ so long as the form shows the facts on which liability could be predicated.”

• Mitchell v. Bailey, 19-51123, appeal from W.D. Tex.
  • King, J. (Owen, King, Engelhardt), jurisdiction, sovereign immunity
  • Vacating in part, affirming in part, reversing in part, and remanding district court’s judgment of dismissal with prejudice of claims against Hoopa Valley Tribe (a federally recognized Indian tribe) and against an individual defendant, Orico Bailey, in his official capacity as a member of the Tribe’s Civilian Community Corps, arising from injuries plaintiff received while working as part of flood disaster-recovery operations.
  • The Court held that the district court had lacked original jurisdiction, and therefore did not have jurisdiction to reach the sovereign immunity question, such that the case should be remanded for dismissal without prejudice.
  • The Court first held that there was no federal jurisdiction. Only state-law claims had been raised, and the sovereign immunity defense could not create federal question jurisdiction because it was a defense. Plaintiff argued that the defendants’ unruled-on motion to substitute the federal government as a party in its place was also insufficient to create federal question jurisdiction. “[T]here is no support for Mitchell’s position that an unresolved motion, filed by Bailey and Hoopa Valley asserting a federal law as a defense, should vest the district court with original jurisdiction over the action.”
  • As to diversity jurisdiction, the Court held that the tribe is deemed a “stateless entity” for purposes of analysis under 28 USC § 1332. Accordingly, the Court held that the tribe’s presence was a “jurisdictional spoiler,” destroying complete diversity. And, since there was no source of original jurisdiction, the Court held that there could not be supplemental jurisdiction over any claims.

• Buntion v. Lumpkin, 20-70004, appeal from S.D. Tex.
  • per curiam (Costa, Duncan, Oldham); Costa, J. concurring; habeas corpus
  • Denying a Certificate of Appealability to petitioner, who had been convicted of capital murder of a police officer.
  • The Court rejected petitioner’s argument that the Texas provision that a death-sentencing jury must consider a defendant’s “continuing threat to society” unconstitutionally allows for inaccurate predictions of future behavior. The Court held this claim to be procedurally defaulted because he inadequately briefed it on direct appeal; and to be substantively meritless because the Supreme Court has twice rejected the argument.
  • The Court rejected petitioner’s argument that his second death sentence, reached after his first death sentence had been vacated on state post-conviction relief, violated constitutional due process due to the passage of time between the two sentences. The Court held the claim to be procedurally barred because he should have raised it on direct appeal; and to be substantively meritless because no case supports the argument.
  • The Court then rejected petitioner’s argument that the Eighth Amendment was violated due to the amount of time he spent on death row, as an unexhausted claim because it was never raised in the state court.
  • Judge Costa would have merely denied the COA, noting that a denial of COA precludes the need to reach the merits of the petitioner’s claims.

Unpublished

• U.S. v. Allen, 18-31182, appeal from E.D. La.
  • per curiam (Higginbotham, Smith, Oldham), criminal
  • Denying IFP status, and dismissing appeal of years-old conviction and sentence as frivolous.

• Lightfoot v. U.S., 19-10704, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Dennis), First Step Act
  • Vacating district court’s denial of motion for sentence reduction and remanding for consideration under the First Step Act.

• Wagner v. Scarborough, 19-11076, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Higginson), prisoner suit
  • Denying IFP status, dismissing appeal of dismissal of suit as frivolous, and issuing three-strikes warning.

• The Unified Buddhist Church of Vietnam v. Unified Buddhist Church of Vietnam — Giao Hoi Phat Giao Viet Nam Thong Nhat, 19-20544, appeal from S.D. Tex.
  • per curiam (Owen, Dennis, Haynes), trademark infringement, accounting
  • Affirming district court’s dismissal of claims for trademark infringement and for accounting related to real estate sale.

• U.S. v. Avila-Ortega, 19-41046, appeal from S.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Ferguson v. Ellis, 19-60165, appeal from S.D. Miss.
  • per curiam (Haynes, Willett, Ho), prisoner suit
  • Affirming summary judgment dismissal of § 1983 complaint.

• U.S. v. Oti, 20-10068, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming denial of sentence reduction.

• Strickland v. Bank of New York Mellon, 20-10124, appeal from N.D. Tex.
  • per curiam (Owen, King, Engelhardt), fraud, pleading requirements
  • Affirming dismissal of claims for failure to plead claim of fraud and misrepresentation with anything more than conclusory allegations.

• P.P. v. Northwest Independent School District, 20-10197, appeal from N.D. Tex.
  • per curiam (Owen, King, Engelhardt), Individuals with Disabilities Education Act
  • Reversing in part and affirming in part district court’s judgment that school district violated the Individuals with Disabilities Education Act by failing to provide a free appropriate public education but denial of compensatory relief.

• Jones v. Gonzalez, 20-20457, appeal from S.D. Tex.
  • per curiam (Dennis, Southwick, Engelhardt), prisoner suit
  • Denying IFP status and dismissing appeal of prisoner suit as frivolous.

• Ryan v. Phillips 66, 20-30193, appeal from W.D. La.
  • per curiam (Stewart, Duncan, Wilson), toxic tort
  • Affirming dismissal of plaintiff worker’s toxic exposure suit against employer.

• Adams v. Ethyl Corp., 20-30209, appeal from E.D. La.
  • per curiam (Owen, King, Engelhardt), toxic tort, asbestos
  • Affirming district court’s judgment apportioning liability in worker exposure claim and reducing general damages awarded by jury.

• Perrin v. Hayward Baker, Inc., 20-30241, appeal from E.D. La.
  • per curiam (Higginbotham, Smith, Dennis), settlement agreement
  • Affirming order enforcing settlement agreement and dismissing claim against subcontractor on dam project for injury received by truck driver.

• U.S. v. Corrall, 20-40390, appeal from E.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, guilty plea
  • Affirming conviction based on guilty plea.

• Murphy v. Abbott, 20-50316, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Higginson), prisoner suit
  • Denying IFP status, and dismissing appeal of prisoner suit as frivolous.

• U.S. v. Lopez-Gonzalez, 20-50368, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming sentence for illegal reentry after deportation.

• U.S. v. Solis-Garcia, 20-50384, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Granting summary affirmance of sentence for reentry.

• Wanzer v. Rayford, 20-50668, appeal from W.D. Tex.
  • per curiam (Clement, Elrod, Haynes), prisoner suit
  • Granting IFP status, vacating district court judgment denying IFP status and dismissing complaint, and remanding for further proceedings.

• Cascade Capital Group, LLC v. Livingston Holdings, LLC, 20-60310, appeal from S.D. Miss.
  • per curiam (Jolly, Stewart, Oldham), breach of contract, fiduciary duty
  • Affirming district court’s judgment that defendants breached contract with plaintiff but that plaintiff breached fiduciary duty to one of the defendants.

• Perez v. Barr, 20-60355, petition for review of BIA order
  • per curiam (King, Smith, Wilson), immigration
  • Denying petition for review of BIA order that concluded petitioner failed to obtain reasonable corroborating evidence and dismissing appeal of IJ order denying application for asylum, withholding of removal, and protection under the Convention Against Torture.

• U.S. v. Bridges, 20-60369, appeal from S.D. Miss.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Granting motion to dismiss appeal of sentence on guilty plea.