Take the Fifth: Feb. 3, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Official Stanford Investors Committee v. Trustmark National Bank, 19-11131, appeal from N.D. Tex.
    • Southwick, J. (Owen, Davis, Southwick), intervention
    • Affirming the denial of intervention of right by group of Stanford investors into suit brought by original plaintiff group of Stanford investors against defendant who provided banking services to R. Allen Stanford for purposes of perpetuating the Stanford Ponzi scheme; and dismissing appeal of denial of permissive intervention.
    • The Court analyzed the timeliness of the motion to intervene for purposes of mandatory intervention under “the Stallworth factors, to determine whether a motion to intervene is timely: the length of time the movant waited to file, the prejudice to the existing parties from any delay, the prejudice to the movant if intervention is denied, and any unusual circumstances.” The Court noted that the length of time, in a situation with a putative class action, should be measured from the point when the intervenors knew or should have known that their rights were no longer protected, in order to promote the goal of class actions to reduce the multiplicity of litigation. Here, the Court held that the intervenor knew or should have known at the time certification was denied, because there were reasonable doubts as to whether the plaintiff then had standing to pursue claims on behalf of all investors (including the intervenors). The Court held that the 18-month gap between denial of certification and the motion to intervene weighed against granting the intervention. The Court then noted that this gap would prejudice the existing parties by opening them up to the expense of a new round of fact discovery, and by delaying the final distribution of any recovery. The Court then held that the plaintiff, OSIC, had standing to recover on behalf of the investors, such that there would be little to no prejudice to the appellants from the denial of intervention. Weighing all of those factors, the Court held there was no abuse of discretion in the district court’s denial of mandatory intervention.
    • As to permissive intervention, the Court observed that timeliness in the mandatory intervention context is more forgiving than in permissive intervention, such that its conclusion that the district court did not abuse its discretion in finding the mandatory intervention motion untimely by necessity also resolved the question of whether the district court abused its discretion in finding permissive intervention to be untimely. Accordingly, because the appeal of the permissive intervention is subject to the Court’s provisional jurisdiction, it dismissed the appeal of that issue.
  • Tampico v. Martinez, 19-20555, appeal from S.D. Tex.
    • per curiam (King, Elrod, Willett), Bivens claim, timeliness
    • Affirming summary judgment dismissal of Bivens claim for return of property seized from plaintiff during child-pornography-related search, on basis that claim was filed beyond the six-year statute of limitations.
  • Solorzano v. Mayorkas, 19-50220, appeal from W.D. Tex.
    • Elrod, J. (Elrod, Southwick, Haynes), Haynes concurring in judgment only; immigration
    • Reversing district court’s denial of government’s motion to dismiss plaintiff’s suit challenging USCIS’s denial of application to obtain lawful-permanent-resident status. “The sole issue in this case is whether an alien who entered the United States without being ‘inspected and admitted or paroled’ may still have his status adjusted to lawful permanent resident by virtue of obtaining TPS [Temporary Protected Status].”
    • Acknowledging the split in circuits on this issue, the Court held that obtaining TPS does not absolve an applicant for lawful permanent resident status from meeting the “inspected and admitted or paroled” requirement. “First, granting TPS does not constitute an admission under § 1255(a). It simply bestows a temporary status upon the recipient. … Possessing a status does not have the same legal effect as going through the process of admission. Receiving TPS does not equate to ‘a new entry.’ Nor does it retroactively cure the deficits in an alien’s initial entry. … Second, granting TPS does not constitute a waiver of the admission requirement in § 1255. By its plain terms, § 1254a grants a status. Had Congress intended to use that status to waive the admissibility requirement for TPS recipients, it could have done so expressly. … Third, being ‘admissible’ under § 1254a does not create an alternative method for satisfying the requirement that one be admitted under § 1255. One can be admissible without ever being admitted. And, as Solorzano recognizes, § 1254a does not require a TPS recipient to undergo the full admissions process.”
    • The Court held that its interpretation avoids rendering portions of the statutory scheme superfluous, while not creating any absurd results. To the extent that it treats different TPS applicants differently depending on the circumstances of their entry, the Court held this was not an absurd result but a legitimate policy-based distinction drawn by Congress. “Moreover, Congress intended to provide only temporary relief to TPS recipients, not permanent protection. The purpose of the TPS program was not to facilitate fast passes to permanent residence in the United States.”
  • Deutsche Bank Trust Company Americas v. U.S. Energy Development Corp., 19-50646, appeal from W.D. Tex. Bankruptcy Ct.
    • Jones, J. (Jolly, Jones, Engelhardt), bankruptcy
    • Affirming bankruptcy court’s grant in part and denial in part of summary judgment motion on behalf of creditor, regarding lien priority dispute arising from sale of oil purchased by debtor prior to its bankruptcy declaration.
    • “The bankruptcy court adroitly untangled a thorny conflicts of law issue, the result of which, unfortunately, undermines the efficacy of a non-standard UCC provision intended to protect Texas oil and gas producers. TEX. BUS. & COM. CODE [hereinafter Texas UCC] § 9.343. As a result, producers must beware ‘the amazing disappearing security interest’ and continue to file financing statements. The Texas legislature should take note.”
  • U.S. v. Winters, 20-30138, appeal from W.D. La.
    • Southwick, J. (Barksdale, Southwick, Graves), criminal, sentencing, First Step Act
    • Affirming district court’s grant of reduction of 233-month sentence under the First Step Act, for conviction for a dual-object conspiracy involving both crack cocaine and powder cocaine.
    • The Court held that the district court correctly found that the First Step Act applied to dual-object conspiracies and not just to those that solely involved crack cocaine. “[T]he straightforward, unforced interpretation of the statutory text is that if Section 2 or 3 of the Fair Sentencing Act modified the statutory penalties for at least one object of a multi-object conspiracy, ‘the statutory penalties’ for that conspiracy offense ‘were modified by’ the Fair Sentencing Act, and the conspiracy satisfies Section 404(a) of the First Step Act. This remains true regardless of whether the modified penalty supplies the mandatory minimum that is actually imposed. The ‘statutory penalties’ have to be considered modified when any statutory penalty for one of the offenses included in a count of conviction has been changed.”

Unpublished

  • U.S. v. Mendoza, 19-50683, appeal from W.D. Tex.
    • per curiam (Wiener, Costa, Willett), criminal, guilty plea
    • Finding no clear error as to the factual basis for a guilty plea, affirming conviction for conspiracy with intent to distribute cocaine.
  • Alvarez-De Sauceda v. Wilkinson, 19-60501, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Costa), immigration
    • Denying petition for review of Mexican citizen’s petition for review of BIA order denying her second motion to reopen and declining to sua sponte reopen the proceedings.
  • Salgado v. Wilkinson, 19-60775, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying Mexican citizen’s petition for review of BIA order denying his motion to reopen.
  • U.S. v. Cheek, 20-10548, appeal from N.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Carter, 20-30305, appeal from E.D. La.
    • per curiam (Higginbotham, Jones, Costa), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under First Step Act.
  • U.S. v. Ruiz-Trujillo, 20-50589, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming 18-month sentence imposed following guilty plea conviction for illegal reentry following removal.
  • Moran v. Wilkinson, 20-60039, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing appeal of IJ decision denying application for withholding of removal and protection under CAT.