Take the Fifth

Designated for publication

• U.S. v. Parkerson, 19-10780, appeal from N.D. Tex.
  • Jolly, J. (Jolly, Southwick, Wilson), criminal, sentencing
  • Affirming 120-month statutory maximum prison term for failure to register as a sex offender where sentencing guidelines range was 18-24 months.
  • The presentencing report (“PSR”) referred to an excerpt from a police report of an incident where the defendant had pulled a box cutter on his niece, who was able to get away from him and as to which charges were never pursued; and to a psychiatrist’s evaluation, which due to conflict with an assessment test the district court had said it would give very little weight to. At sentencing, explaining the departure from the guidelines range, the district court referred to the defendant’s repeat offenses in his criminal history, and that the departure was to ensure community safety as the court found that previous terms of imprisonment had apparently had no deterrent effect.
  • The Court held that there was no procedural error in the PSR reference to the encounter between the defendant and his niece, as it was very “detailed and specific, including the location of the alleged assault, specific directions as to how they supposedly got there, the nature of the weapon that was allegedly used, and specific details about the alleged assault itself.” The Court also noted that the defendant’s recounting of the event corroborated that they were together, the location, and that he was holding a box cutter. Accordingly, the Court held that it was not a “bare arrest report” with conclusory allegations, but had sufficient indicia of reliability to be used as part of the sentencing considerations.
  • The Court held that the question of whether the psychiatrist’s evaluation contained sufficient indicia of reliability was unnecessary to reach, as the “record indicates that his opinion did not affect the district court’s composition of the sentence it imposed.”
  • As to the substantive reasonableness of the sentence, the Court held that the district court did not abuse its discretion in imposing the 120-month sentence “[g]iven the public safety concerns at issue, when viewed in the light of Parkerson’s criminal history.”

• Herndon v. Upton, 19-11156, appeal from N.D. Tex.
  • Higginson, J. (Haynes, Higginson, Oldham), Oldham, J., concurring; habeas corpus, mootness
  • Affirming dismissal of § 2241 petition as moot.
  • Petitioner had been sentenced to 60 months’ imprisonment and three years’ supervised release, but before she began her prison term, she had to undergo extensive cancer treatment; the sentencing court agreed to allow her to serve a year in home confinement during the time of her treatments. However, the petitioner did not surrender for her prison term at the end of that year, and not until almost two years later was she apprehended to start her imprisonment. The court did reduce her prison time for the home confinement period, but the start date for the term was not until she was apprehended and actually commenced her prison term. Her § 2241 petition alleged her start date should have been the time of sentencing. While her § 2241 petition was pending at the district court, she was released from confinement.
  • The Court held that the district court properly determined that her release from confinement mooted her § 2241 petition. “Herndon’s release mooted her § 2241 petition, notwithstanding her continued supervision, because there was no longer a live case or controversy for which any relief could be granted. Herndon had already received the sole relief sought in her petition: release from confinement.”
  • The Court held that Johnson v. Pettiford, 442 F.3d 917 (5th Cir. 2006), wherein the Court had held that a district court may exercise discretion to modify a term of supervised release upon a determination that the defendant had been incarcerated beyond the proper termination of his prison term, was inapplicable. The Court held that only the sentencing court can modify a sentence; and because the petitioner here had received her original sentence from the district court in Florida, the district court in Texas (where she had filed her § 2241 petition because that was the jurisdiction where she was confined) had no jurisdiction to modify her term of supervised release. “Absent a transfer of jurisdiction over a prisoner’s term of supervised release, see 18 U.S.C. § 3605, only the sentencing court has authority to modify the terms of a prisoner’s supervised release.”
  • Judge Oldham concurred, agreeing that the petition was mooted by the petitioner’s release from confinement and that Pettiford was distinguishable. But Judge Oldham also opined further that, “in an appropriate case, our en banc court should overrule Johnson v. Pettiford.” Justice Oldham noted that he believed the Supreme Court has more recently approached mootness as solely dependent on the petitioner’s requested relief, and not on what relief the petitioner could have requested, such that “[i]t’s impossible to reconcile the Supreme Court’s approach with Johnson v. Pettiford’s decision to rescue a habeas petition based on the mere possibility of a supervised-release modification the petitioner did not request.”

• Swales v. KLLM Transport Services, LLC, 19-60847, appeal from S.D. Miss.
  • Willett, J. (Jolly, Jones, Willett), Fair Labor Standards Act, collective action, labor law
  • Vacating the district court’s order of “conditional certification” of a FLSA collective action on a minimum wage claim, and remanding for a new determination of “similarly situated” status.
  • The Court held that it had never delineated the standard applicable to determining when a “collective action” of “similarly situated” employees could go forward under the Fair Labor Standards Act, and concluded that the two-step test in Lusardi v. Xerox Corporation, 118 F.R.D. 351 (D.N.J. 1987), did not appropriately answer the question.
  • The FLSA’s enforcement provision provides for a private right of action, and provides for a collective action where employees are “similarly situated,” but does not define “similarly situated” or provide for any particular procedure or standard, including that it does not provide for certification, “conditional certification,” or notice. It was then amended by the Portal-to-Portal Act to provide an opt-in requirement for collective actions. The Court explained, “The Portal-to-Portal Act takes into account the dual goals of collective actions: (1) enforcement (by preventing violations and letting employees pool resources when seeking relief); and (2) efficiency (by resolving common issues in a single action).12 But collective actions also pose dangers: (1) the opportunity for abuse (by intensifying settlement pressure no matter how meritorious the action); and (2) the appearance of court-endorsed solicitation of claims (by letting benign notice-giving for case-management purposes warp into endorsing the action’s merits, or seeming to, thus stirring up unwarranted litigation).”
  • “Lusardi laid out a two-step process to determine, ‘on an ad hoc case-by-case basis,’ whether prospective opt-in plaintiffs in a proposed collective are ‘similarly situated’ enough to satisfy the FLSA. Step one involves ‘an initial “notice stage” determination’ that proposed members of a collective are similar enough to receive notice of the pending action. This initial step is referred to as ‘conditional certification’ of a putative class. District courts typically base their decisions at the first step ‘on the pleadings and affidavits of the parties.’ And they may require little more than ‘substantial allegations that the putative [collective] members were together the victims of a single decision, policy, or plan.’ Step two occurs at ‘the conclusion of discovery (often prompted by a motion to decertify).’ Because it has the benefit of full discovery, the court makes a second and final ‘determination, utilizing a stricter standard,’ about whether the named plaintiffs and opt-ins are ‘similarly situated’ and may therefore proceed to trial as a collective. If the court finds that the opt-ins are not sufficiently similar to the named plaintiffs, it ‘must dismiss the opt-in employees, leaving only the named plaintiff’s original claims.’ Factors considered at this second step include: ‘(1) [the] disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [the] defendant which appear to be individual to each plaintiff; and fairness and procedural considerations.'” (Footnotes omitted).
  • The Court held, “We have ‘carefully avoided adopting’ Lusardi, and our avoidance should not be misconstrued as acquiescence. And now that the question is squarely presented, we reject Lusardi.” The Court noted that the text of the FLSA “says that the district court’s job is ensuring that notice goes out to those who are ‘similarly situated,’ in a way that scrupulously avoids endorsing the merits of the case. A district court abuses its discretion, then, when the semantics of ‘certification’ trump the substance of ‘similarly situated.'” Specifically, the Court held that the merits of threshold issues such as independent contractor status that would otherwise be ignored under a Lusardi step-one “conditional certification” analysis should be part of both the ultimate and the initial determination of “similarly situated” under the FLSA. “We thus reject Lusardi because on the one hand, its flexibility has led to unpredictability.And on the other hand, its rigidity distracts district courts from the ultimate issues before it.”
  • The Court concluded, “This case poses an issue that has been under-studied but whose importance cannot be overstated: how stringently, and how soon, district courts should enforce § 216(b)’s ‘similarly situated’ mandate. As explained above, the FLSA’s similarity requirement is something that district courts should rigorously enforce at the outset of the litigation.”

• Big Tyme Investments, LLC v. Edwards, 20-30526, consolidated appeals from the E.D. La. and W.D. La.
  • Higginson, J. (Dennis, Higginson, Willett), Willett, J., concurring; Covid-19, Equal Protection Clause, mootness
  • Affirming district courts’ denial of preliminary injunctive relief to bar owners on claims that Covid-19-related orders violated Equal Protection Clause in differential treatment of bars and restaurants.
  • Plaintiff bar owners brought Equal Protection Claims and sought injunctive relief against Louisiana’s Covid-19-related provisions that allowed restaurants to continue with dine-in service but restricted bars to take-out and curb-side service.
  • The Court first held that the appeal was not mooted by Louisiana’s entry into “Phase 3″ reopening, which allowed bars to provide dine-in service, though at a smaller capacity than restaurants and only in parishes that met a threshold of 5% or lower positivity rates over a two-week period.” The Court noted that the “orders continue to differentiate between ‘bars’ and ‘restaurants’ in their respective operating capacities and reopening gating criteria. Consequently, even though the restrictions on ‘bars’ may have lessened, the crux of the bar owners’ equal protection claim remains unchanged.”
  • The bar owners first argued that the district courts erred in applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and In re Abbott, 954 F.3d 772 (5th Cir. 2020). Jacobson “involved a challenge to Massachusetts’s 1902 compulsory vaccination law during a smallpox epidemic. In [Jacobson], the plaintiff argued that the law violated his Fourteenth Amendment right ‘to care for his own body and health.’ The Supreme Court rejected the claim, emphasizing that ‘a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.’ In upholding the state’s law, the Court concluded that judicial review is limited to whether ‘a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ In Abbott, our court explained that ‘Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.'” (Internal citations omitted).
  • For purposes of the first inquiry under Abbott, the Court held that “[i]t is undisputed that the Bar Closure Order is substantially related to curbing the spread of COVID19 in Louisiana.” As to the second inquiry–“whether the Bar Closure Order is ‘beyond question, in palpable conflict with the Constitution'”–the Court applied traditional rational-basis review. The Court held that the Order “clearly does” treat similar businesses differently. But the Court then held that “the Bar Closure Order’s differential treatment of bars operating with AG permits is at least rationally related to reducing the spread of COVID-19 in higher-risk environments.” The rationales offered by the state included:
    • “The ‘primary purpose’ of bar goers is ‘to socialize’; bars often have loud music, which requires their patrons to ‘move closer to each other’; and with increased intoxication, patrons are ‘less likely to maintain appropriate social distance and to wear masks.’
    • “Bar patrons are ‘younger adults’ who are ‘more likely to be asymptomatic carriers of COVID-19 and therefore more likely to patronize bars without realizing that they are spreading the virus.’ Relatedly, state data also ‘showed a dramatic increase in cases among 18-29-year-olds.’
    • “Despite limited data, statewide contact tracing linked a significant percentage of COVID-19 cases to bars.
    • “The White House and CDC recommended closing bars, and the White House Coronavirus Task Force ‘repeatedly recommended to the State of Louisiana that bars be closed because of Louisiana’s increasing COVID-19 caseload.’
    • “Reports showed that foreign countries, including South Korea and the United Kingdom, were successful in controlling the spread of COVID-19 by shutting down ‘bars and nightclubs.'”
  • The Court therefore affirmed the denial of preliminary injunctive relief to the bar owners, concluding, “We are sympathetic to the bar owners, their employees, and other businesses who are hurting financially and face great adversity during this time. Judges Feldman and Summerhays, however, expedited evidentiary hearings, and based on the testimony credited at those hearings refused to second-guess the Governor’s determination regarding the health and safety of the state. Judges ‘are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area.'”
  • Judge Willett concurred, opining that the insertion of modern rational-basis review at the second-step of the Abbott inquiry rendered any suggestion that Jacobson provided any governing principle to questions of public health emergency regulations superfluous.

• Shah v. VHS San Antonio Partners, LLC, 20-50394, appeal from W.D. Tex.
  • Owen, C.J. (Owen, King, Engelhardt), antitrust law
  • Affirming summary judgment in favor of defendants, dismissing antitrust and tortious interference claims of plaintiff anesthesiologist against hospital group for entering into contract for an exclusive provider of anesthesiology services for the hospitals in the group.
  • The Court turned to the question of standing for the plaintiff’s Sherman Act claims, and specifically to whether he had properly defined the relevant “market” for purposes of those claims. “The relevant market is ‘the area of effective competition’ ‘in which the seller operates, and to which the purchaser can practicably turn for supplies.’ The relevant market has two components: a product market and a geographic market.” (Footnoted omitted).
  • “Shah, a pediatric anesthesiologist, sued BHS, a hospital system, alleging Sherman Act violations related to the pediatric anesthesiologist product market. Shah did not attempt to identify, either at summary judgment or in his opening brief, hospitals or clinics ‘where people could practicably go’ for pediatric anesthesia services within Bexar County and the seven contiguous counties. He did not even specify individual pediatric anesthesiologists from whom patients could practicably obtain health care services. Rather, he provided tallies, by county, of pediatric anesthesiologists in Texas that fit the anesthesiology requirements of the BHS-STAR Agreement. Moreover, as the BHS parties argue, Shah’s proposed relevant market does not encompass all interchangeable substitute products because it does not include the two non-BHS facilities that the BHS parties contend serve as viable alternatives to BHS facilities.” The Court, therefore, held that the plaintiff’s relevant market definition was insufficient as a matter of law.

Unpublished

• Johnson v. Affiliated Computer Services, Inc., 19-10661, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), derivative sovereign immunity
  • Affirming the district court’s dismissal of a Rule 60(b)(6) motion rejecting plaintiff’s claim that derivative immunity deprived the district court of subject matter jurisdiction over a case in which it had entered a 12(b)(6) dismissal nearly eight years before.

• U.S. v. Williams, 19-11287, appeal from N.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming 240-month statutory maximum sentence imposed for conviction of conspiracy to possess with intent to distribute a mixture and substance containing fentanyl.

• U.S. v. Brock, 19-20786, appeal from S.D. Tex.
  • per curiam (Owen, Dennis, Ho), criminal, First Step Act
  • Vacating district court’s order that defendant was not eligible for a sentence reduction under the First Step Act, and remanding for consideration of his motion.

• Muhammad v. Wiles, 19-50514, appeal from W.D. Tex.
  • per curiam (Barksdale, Southwick, Graves), prisoner suit
  • Reversing district court’s dismissal of plaintiff’s suit for failure to exhaust remedies, and remanding for further proceedings.

• Johnson v. The Kroger Company, 20-10580, appeal from N.D. Tex.
  • per curiam (Barksdale, Southwick, Graves), negligence
  • Affirming district court’s grant of summary judgment in favor of defendant in slip-and-fall case.

• U.S. v. Moore, 20-10870, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Willbern v. Bayview Loan Servicing, LLC, 20-20129, appeal from S.D. Tex.
  • per curiam (Jolly, Elrod, Graves), foreclosure
  • Affirming district court’s summary judgment dismissing plaintiff’s claim for injunctive relief to enjoin foreclosure on his residence.

• Weiser v. Conroe Regional Medical Center, 20-20226, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), timeliness, Americans with Disabilities Act
  • Affirming dismissal of plaintiff’s ADA claim as untimely.

• Su v. Wilmington Trust, 20-20337, appeal from S.D. Tex.
  • per curiam (Haynes, Duncan, Engelhardt), Rule 60(b)
  • Affirming denial of plaintiff’s Rule 60(B) motion that his failure. to appear at summary judgment hearing was excusable due to his incarceration in England.

• Brown v. Phoenix Life Ins. Co., 20-30225, appeal from M.D. La.
  • Higginson, J. (Haynes, Higginson, Oldham), insurance law, breach of contract
  • Affirming in part and reversing in part 12(b)(6) dismissal of contract claims by policy holder against life insurance company, affirming dismissal of eight counts of plaintiff’s amended complaint and reversing dismissal of two counts, and remanding for further proceedings.

• U.S. v. Orellana-Castellanos, 20-40179, appeal from S.D. Tex.
  • per curiam (Wiener, Costa, Willett), criminal
  • Affirming conviction of defendant for transporting a person in the U.S. that he either knew, or was in reckless disregard of knowing, was in the U.S. illegally.

• Sissom v. Countrywide Home Loans, Inc., 20-50392, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), foreclosure
  • Affirming district court’s denial of remand and dismissal of claims to enjoin foreclosure.

• U.S. v. Bermudez-Chavez, 20-50603, appeal from W.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Granting motion for summary affirmance and affirming 30-month within-guidelines sentence imposed following guilty plea conviction for illegal reentry.

• In re Stewart, 20-50808, motion for order authorizing W.D. Tex. to entertain successive § 2254 application
  • per curiam (Jones, Elrod, Higginson), habeas corpus
  • Denying motion to file successive § 2254 application to present affidavit of witness recanting trial testimony on basis that “[w]e do not recognize freestanding claims of actual innocence on federal habeas review.”