Take the Fifth

Designated for publication

• Miller v. Sam Houston State University, 19-20752, appeal from S.D. Tex.
  • Wilson, J. (Jolly, Southwick, Wilson), Title VII, employment discrimination, judicial bias
  • Reversing dismissal of claims, remanding for further proceedings, and ordering that cases be reassigned to a new judge upon remand.
  • “From the outset of these [consolidated] suits, the district judge’s actions evinced a prejudgment of Miller’s [employment discrimination] claims. At the beginning of the Initial Case Management Conference, the judge dismissed sua sponte Miller’s claims against TSUS and UHS, countenancing no discussion regarding the dismissal. Later in the same conference, the judge responded to the parties’ opposition to consolidating Miller’s two cases by telling Miller’s counsel, ‘I will get credit for closing two cases when I crush you. . . . How will that look on your record?’ And things went downhill from there. The court summarily denied Miller’s subsequent motion for reconsideration, denied Miller’s repeated requests for leave to take discovery (including depositions of material witnesses), and eventually granted summary judgment in favor of SHSU and UHD, dismissing all claims.”
  • The Court held that the district court’s sua sponte dismissal of the University System defendants failed to provide the plaintiff an adequate opportunity to respond. The Court held that the district court likewise erred in denying the plaintiff’s motion for reconsideration of that dismissal. “[I]t was not a ‘fair procedure,’ as required for a sua sponte dismissal, for the court to force Miller to resort to a motion to reconsider—as a proxy for arguments she might have made before dismissal—as her only avenue to oppose the dismissal of her claims. … [T]he points raised in Miller’s motion for reconsideration illuminate why dismissal of the Systems was premature under the fact-specific inquiry used to evaluate employment relationships, at least given the scant record before us.” Among the fact-specific inquiries the Court held should have been afforded the Plaintiff adequate opportunity to brief were the factors of the control exercised by the University Systems in their institutions’ hiring and firing, and the economic realities of the employment relationship. “The court’s denial of Miller’s motion for reconsideration, the day after she filed it, squelched any further development of Miller’s allegations and arguments[.]”
  • The Court next held that the district court abused its discretion in denying plaintiff’s repeated motions for discovery and for depositions of defendants. After noting a summary judgment in a prior Title VII case in front of the same judge that the Court had had to reverse due to the district court’s failure to allow the plaintiff adequate opportunity for discovery, the Court observed, “We have a sense of déjá vu. … To put it simply, the court’s discovery restrictions suffocated any chance for Miller fairly to present her claims. While the Universities offer that Miller was not prejudiced because she had already received voluminous documentation from a pre-suit Texas Public Information Act request, we are not persuaded given the district court’s inflexible denials of both her written discovery requests and her requests to take depositions. Miller requested discovery on multiple occasions and was denied, almost instantly, at every turn[.]”
  • Finally, as to reassignment to a new judge upon remand, the Court held that the reassignment power was an extraordinary one that should be rarely exercised. However, the Court held that “the cumulative weight of both prejudicial comments and peremptory rulings by the district judge leads us to conclude that the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his mind previously-expressed views [and that] reassignment is advisable to preserve the appearance of justice[.]” (Internal quotation marks and citations omitted).

• U.S. v. Cline, 19-51178, appeal from W.D. Tex.
  • Jones, J. (Jones, Smith, Elrod), criminal
  • Affirming conviction under the Violence Against Women Act.
  • The Court first held that the protective orders that the defendant was convicted oof violating, though they were “mandatory” protective orders that were imposed under Colorado law without the need of being requested by the victim, were qualifying protective orders under the VAWA.
  • The Court then held that there was sufficient evidence to support a verdict that the defendant intended to violate the protective orders by transporting the victim through multiple states.
  • The Court held that conviction of two counts under VAWA, for one course of conduct that violated two separate protective orders issued in two separate counties, did not violate the double-jeopardy-derived prohibition against multiplicity. “Three aspects of the statutory text demonstrate that Cline’s violation of each protection order, albeit arguably through one continuous course of conduct, gave rise to two separate offenses. First, and most obviously, the statute twice refers to ‘a’ protection order in the singular when describing the offense. Second, the statute specifies that an offense occurs when a person engages in conduct that violates a particular ‘portion’ of a protection order. The emphasis on individualized content confirms that the statute did not create an offense covering protection orders in a general sense, but rather created an offense that arises from the violation of a particular order. Third, the text explicitly references an order ‘in the jurisdiction in which the order was issued.’ Thus, the statute treats protection orders arising in different jurisdictions distinctly. It is easy to conclude that a single protection order constitutes the proper unit of prosecution.”
  • The Court then held there was no clear error in the district court’s application of the vulnerable victim enhancement based on the victim’s pregnancy.

Unpublished

• U.S. v. Lane, 18-11304, appeal from N.D. Tex.
  • per curiam (Haynes, Willett, Ho), habeas corpus
  • Affirming dismissal of § 2255 petition challenging 2014 drug conspiracy conviction and sentence on the basis that trial counsel performed in a constitutionally deficient manner by failing to consult with petitioner regarding an appeal.

• Montgomery v. Goodwin, 19-30033, appeal from W.D. La.
  • per curiam (Elrod, Haynes, Higginson), habeas corpus
  • Vacating district court’s denial of § 2254 petition, and remanding with instructions to dismiss for lack of jurisdiction.

• West v. Thompson, 19-31039, appeal from M.D. La.
  • per curiam (Willett, Ho, Duncan), prisoner suit
  • Dismissing as frivolous appeal of dismissal of prisoner suit claiming violation of the Eighth Amendment by adopting a policy of double celling inmates who were confined in administrative segregation on protective custody, and excessive force by a correctional officer when plaintiff refused to return to his cell due to threats made by his cellmate.

• Poree v. Akwitti, 19-50650, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), prisoner suit
  • Affirming dismissal of suit arising from assault by a fellow inmate.

• Camp v. Putnam, 19-50842, appeal from W.D. Tex.
  • per curiam (Willett, Ho, Duncan), prisoner suit
  • Dismissing appeal as moot after district court granted relief sought by prisoner whose suit challenged the conditions of his confinement, finding that Camp was in imminent danger of serious physical injury due to the spreading COVID-19 pandemic.

• Soares-Lino v. Wilkinson, 19-60422, petition for review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying in part and dismissing in part Brazilian citizen’s petition for review of BIA order dismissing appeal of IJ denial of motion to reopen the removal proceedings and rescind in absentia order to remove on argument that petitioner had not received proper notice of her removal hearing because the agents who processed her upon her entry into the United States spoke Spanish, not Portuguese, and she understood only basic things in Spanish.

• Gutierrez-Abrego v. Wilkinson, 19-60494, petition for review of BIA order
  • per curiam (Jones, Barksdale, Stewart), immigration
  • Denying Honduran citizen’s petition for review of a BIA order denying motion for reconsideration from dismissal of appeal of an IJ’s denial of her motion to reopen removal proceedings.

• U.S. v. Rothlander, 20-20222, appeal from S.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Jaimes-Denis, 20-40396, appeal from E.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming 92-month, above-guidelines range sentence for illegal reentry by a deported alien.

• Moody v. American National Insurance Co., 20-40462, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), whistleblower
  • Affirming 12(b)(6) dismissal of Sarbanes-Oxley whistleblower claim on basis that plaintiff was not an employee of the defendant.

• U.S. v. Hammeren, 20-50310, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming denial of motion for reduction of 210-month sentence for receipt of child pornography.