Take the Fifth: Feb. 10 and 11, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Adams v. All Coast, LLC, 19-30907, appeal from W.D. La.
    • Clement, J. (Smith, Clement, Oldham), Fair Labor Standards Act, maritime law
    • Reversing summary judgment in favor of employer on employees’ FLSA overtime claims, on holding that district court erred in classifying the employees, who operated cranes on employer’s liftboats, a seamen who would therefore be exempt from the FLSA’s overtime provisions. Remanding for further proceedings.
    • The named plaintiff “spent much of his time operating a hydraulic crane to move personnel and equipment between the liftboat and the dock, offshore worksite platforms, and other vessels, as well as on the liftboat itself.” In this collective action, he “claims that because he was really a crane operator and not a seaman, All Coast owes him unpaid overtime wages under the FLSA.” He alleges the liftboats “spent no less than 80 percent of their time in the jacked-up, stationary position.”
    • Under Department of Labor guidance, an employee is classified as an FLSA-exempt seaman if “‘(1) the employee is subject to the authority, direction, and control of the master; and (2) the employee’s service is primarily offered to aid the vessel as a means of transportation, provided that the employee does not perform a substantial amount of different work.'” Only the second of these elements is at issue here, as the plaintiffs slept, ate, and worked on the vessels and were subject to the captain’s authority. According to the plain language of DOL regulations, “when the crew assists with loading or unloading, or with ‘essentially industrial’ tasks, that portion of their time is not seaman’s work.”
    • Under the DOL regulations, the Court held that “there is nothing special about the nature of All Coast’s charters that would pull crane operations into the vessel’s ambit ‘as a means of transportation.’ 29 C.F.R § 783.31. Consider the alternative. If that were so then all loading and unloading would qualify as seaman’s work. Yet the regulation says the opposite. If anything, the use of a hydraulic crane makes the work less like a typical seaman’s, not more.”
    • Addressing the standards from prior opinions, the Court held, “The disputed question is whether their service operating the cranes was ‘offered to aid the vessel as a means of transportation.’ 29 C.F.R. § 783.31. It was not. To be sure, the plaintiffs performed many tasks that do satisfy that test. When the boats were underway, they acted as a normal nautical crew. And they remained responsible for their nautical tasks even when the boats were jacked up. They attended safety meetings, cleaned up the liftboats, and performed regular inspections. But unlike in Coffin, the plaintiffs’ loading and unloading duties were not ‘integrated with their many other duties.’ Coffin, 771 F.3d at 283. Instead, once they finished their duties as the boat’s crew, the plaintiffs turned their attention exclusively to operating the cranes. It was as though they were performing two discrete jobs: upkeep of the boat and operation of the crane.”
    • “Additionally,” the Court observed, “the loading and unloading duties do not address the plaintiffs’ other compelling framing of the issue: that they also used the cranes to support their customers’ industrial activities on the oil platforms.”
    • The court then held that the cooks on the liftboats were also not FLSA-exempt seamen, since cooks on vessels are typically classified as seamen because they cook for other seamen–and the cooks on these liftboats were cooking primarily for the non-seamen crane operators.

Unpublished

  • Newton v. U.S., 18-11414, appeal from N.D. Tex.
    • per curiam (Willett, Ho, Duncan), prisoner suit
    • Dismissing appeal of dismissal of Bivens claim regarding medical treatment as frivolous.
  • U.S. v. Kendall, 18-60661, appeal from N.D. Miss.
    • per curiam (Wiener, Southwick, Duncan), habeas corpus
    • Affirming dismissal of § 2255 petition on basis that first-degree murder conviction qualifies as a crime of violence under § 924(c)(3)(A).
  • Center for Inquiry, Inc. v. Warren, 19-11029, appeal from N.D. Tex.
    • Graves, J. (King, Graves, Oldham), King, J., concurring; standing
    • Vacating dismissal for failure to state a claim of plaintiff’s suit challenging constitutionality of Texas statute allowing religious officiants to conduct weddings but not officiants of secular organizations, and remanding with instructions to dismiss for lack of subject-matter jurisdiction on the basis that plaintiffs lack standing.
    • Judge King concurred in the judgment, opining that the sought remedy of enjoining only the Dallas County clerk from enforcing the statute would be a “meaningless gesture.”
  • Gilmore-Webster v. Bayou City Homebuyers, Inc., 19-20683, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Oldham), timeliness, venue, jurisdiction
    • Affirming dismissal of amended complaint as untimely filed. Plaintiff “argue[d] the Northern District of California—where he originally filed his complaint—is the proper venue for his case. As a threshold matter, Gilmore-Webster failed to establish either court’s diversity jurisdiction. We would ordinarily remand, but doing so would be futile. So we affirm.”
  • U.S. v. Benito, 19-20850, appeal from S.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sufficiency of evidence
    • Affirming conviction of defendant on one count of conspiring to possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine.
  • U.S. v. Lomas, 19-30876, appeal from M.D. La.
    • per curiam (Jones, Barksdale, Stewart), criminal, sentencing, First Step Act
    • Affirming denial of motion for sentence reduction under First Step Act.
  • U.S. v. Goodin, 19-30923, appeal from W.D. La.
    • Jones, J. (Jones, Smith, Elrod), criminal, sufficiency of evidence, search and seizure, sentencing
    • Affirming convictions of three defendants found guilty of participating in the same or related drug and drug conspiracy offenses; and sentence enhancement applied to one of the defendants.
  • Robinson v. LeBlanc, 19-30958, appeal from M.D. La.
    • per curiam (Stewart, Graves, Higginson), prisoner suit
    • Dismissing appeal of § 1983 action as frivolous.
  • U.S. v. Gomez-Marte, 19-40862, appeal from E.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • U.S. v. Gomez, 19-41043, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • Matias-Matias v. Barr, 19-60611, petition for review of BIA order
    • per curiam (Davis, Stewart, Dennis), immigration
    • Denying Guatemalan citizen’s petition to review BIA dismissal of appeal of the IJ’s denial of his application for withholding of removal.
  • Rehvach-Rodriguez v. Wilkinson, 19-60796, petition for review of BIA order
    • per curiam (Jolly, Elrod Graves), immigration
    • Denying Guatemalan citizen’s petition for review of BIA decision upholding the IJ decision to deny her application for asylum and withholding of removal.
  • U.S. v. Moore, 20-10069, appeal from N.D. Tex.
    • per curiam (Davis, Stewart, Dennis0, habeas corpus
    • Affirming denial of Rule 59(e) motion to reconsider dismissal of § 2255 petition as prohibited successive petition, and warning against further frivolous filings.
  • U.S. v. Lang, 20-10420, appeal from N.D. Tex.
    • per curiam (Davis, Southwick, Costa), criminal, sentencing
    • Affirming denial of motion for sentence reduction on grounds of failure to exhaust administrative remedies.
  • Gu v. Invista S.A.R.L., 20-20027, appeal from S.D. Tex.
    • per curiam (Stewart, Graves, Higginson), timeliness
    • Dismissing appeal of 13 rulings by district court in ADEA case on basis that appeal was untimely brought as to those rulings, and as to 14th ruling denying Rule 59(e) motion on basis that no error was asserted as to that ruling.
  • White v. City of New Orleans, 20-30374, appeal from E.D. La.
    • per curiam (Davis, Stewart, Dennis), § 1983
    • Affirming dismissal of plaintiff’s § 1983 claims on finding that plaintiff “did not show a deprivation of a constitutional right by the City of New Orleans and did not allege a deprivation of a constitutional right or action under color of state law for the remaining defendant; and dismissing with prejudice for failure to state a claim the medical malpractice claim that the district court broadly read into the complaint and had dismissed without prejudice as premature.
  • Wyre v. UTMB, 20-40253, appeal from E.D. Tex.
    • per curiam (King, Smith, Wilson), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 suit alleging deliberate indifference to serious medical needs.
  • Huang v. Huang, 20-50445, appeal from W.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), employment law
    • Affirming dismissal for failure to state a claim of various tort claims and violations of the Texas Constitution, First Amendment, and Fourteenth Amendment.
  • U.S. v. Griffin, 20-60876, appeal from S.D. Miss.
    • per curiam (Jones, Barksdale, Stewart), criminal, compassionate release
    • Affirming denial of motion for compassionate release.