Take the Fifth: Dec. 18, 2020 opinions

Designated for publication

  • McMillan v. Amazon.com, Inc., 20-20108, appeal from S.D. Tex.
    • Willett, J. (Wiener, Costa, Willett), products liability, certification
    • Certifying question to the Texas Supreme Court whether an e-tailer such as Amazon is a “seller” liable under Texas’s products liability statute for products sold on its website by third-party vendors.
    • The district court had held that Amazon was a “seller” under the Texas law, for purposes of being responsible for a manufacturer of a product who was not subject to the court’s jurisdiction, and who used Amazon’s “Fulfillment By Amazon” service, finding that “Amazon ‘was an integral component in the chain of distribution’ by enabling the sale, having physical possession of the product, delivering the product, earning money from the sale, and exercising control over the transaction by retaining certain rights, such as withholding payment to the third-party seller.”
    • Because the “available precedent does not yield an airtight answer,” the Court held that it was unable to make an Erie guess as to whether Amazon should be treated as a “seller” under Texas law.
    • Accordingly, the Court held that, “[b]y any measure, this case hits the certification bull’s-eye. It poses a res nova, determinative question of Texas law with far-reaching consequences and no instructive state-court guidance. It is a Certification 101 exemplar that calls for cooperative judicial federalism, leaving a weighty ruling on Texas negligence law to those elected to rule on Texas negligence law.” Responding to counsel’s concern that the certification may delay the resolution of the issue, the Court observed, “[B]y long tradition, the Texas Supreme Court graciously accepts and prioritizes certified questions from this circuit, and we are confident that the Court’s impressive streak of timely clearing its docket will remain unbroken,” then added via footnote, “No pressure.”
  • Cunningham v. Castloo, 20-40082, appeal from E.D. Tex.
    • Jolly, J. (Jolly, Southwick, Wilson), qualified immunity
    • Reversing district court’s denial of qualified immunity to sheriff accused of violating the plaintiff’s procedural due process rights by denying a name-clearing hearing, and remanding for further proceedings.
    • In determining whether the sheriff’s denial of the plaintiff’s name-clearing hearing violated a “clearly established” right, the Court invoked a seven-factor test: “We further confected a seven-element ‘stigma-plus-infringement’ test to determine whether a government employer violates a discharged employee’s procedural-due-process rights by denying her request for a name clearing hearing. To prevail under that test, the discharged employee must show that (1) she was discharged; (2) stigmatizing charges were made against her in connection with the discharge; (3) the charges were false; (4) she was not provided notice or an opportunity to be heard pre-discharge; (5) the charges were made public; (6) she requested a hearing to clear her name; and (7) the employer denied the request.” (Internal citations omitted).
    • The Court held that the district court erred in looking too generally and broadly at whether a name-clearing hearing was required, as the qualified immunity inquiry requires particularity and granularity focused on the specific facts at issue. Here, specifically, the Court held that the fact of the plaintiff asking to speak with the sheriff on the subject of her termination was not “clearly established” as a request for a name-clearing hearing.


  • U.S. v. Gunnell, 19-11030, appeal from N.D. Tex.
    • per curiam (Owen, Haynes, Costa), criminal, sentencing
    • Affirming 16-month sentence for possession of a controlled substance.
  • U.S. v. Rubio, 19-20750, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • U.S. v. Rudzavice, 20-10536, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • M.E. v. Alvin Independent School District, 20-20070, appeal from S.D. Tex.
    • per curiam (Wiener, Costa, Willett), Title IX
    • Affirming summary judgment in favor of school district on plaintiffs’ Title IX claim arising from sexual abuse of minor by school resource officer.
  • U.S. v. Borek, 20-30047, appeal from W.D. La.
    • per curiam (Owen, Haynes, Costa), criminal, sentencing
    • Affirming 50-month sentence for attempted bank fraud.
  • U.S. v. Cabrera-Lopez, 20-40143, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • U.S. v. Mata, 20-40152, appeal from S.D. Tex.
    • per curiam (Owen, King, Engelhardt), criminal, sufficiency of evidence
    • Affirming conviction for transportation of illegal aliens within the United States.
  • U.S. v. Alvarez, 20-40171, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, search and seizure
    • Affirming conviction based on conditional guilty plea, and upholding denial of motion to suppress, for making a false statement in connection with acquisition of a firearm.
  • U.S. v. Stafford, 20-40227, appeal from S.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, reasonable suspicion
    • Affirming conviction of conspiracy to transport undocumented immigrants, and upholding denial of motion to suppress oral statements.
  • U.S. v. McAfee, 20-50236, appeal from W.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Affirming 24-month concurrent sentences for violations of two supervised release terms.

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