Take the Fifth

Designated for publication

• U.S. v. Nora, 18-31078, appeal from E.D. La.
  • Higginson, J. (Higginbotham, Jones, Higginson), criminal, sufficiency of evidence
  • Reversing convictions and vacating sentence on counts of conspiracy to commit health care fraud, conspiracy to pay or receive illegal health care kickbacks, and aiding and abetting health care fraud, on holding that there was insufficient evidence to support the convictions.
  • Defendant was “tried and convicted alongside five codefendants for his involvement in a large home health care fraud and kickback scheme in connection with his employment at Abide Home Health Care Services, Inc. His codefendants … also appealed their convictions, but their case was resolved by a separate panel of this court in United States v. Barnes, 979 F.3d 283 (5th Cir. 2020). That panel affirmed the codefendants’ convictions.”
  • Of 23 total personnel at Abide who were indicted, many entered plea agreements, and the main orchestrator of the conspiracy did so in exchange for testimony against the others, including testimony against Nora. Nora had risen from an hourly data-entry clerk at Abide to a salaried office manager, coordinating new patient intake and admissions, and never received any compensation other than his salary during that time.
  • Examining the evidence in the record, the Court found that “[t]he evidence at trial showed that Nora’s role entangled him, to some extent, in three practices that were central to Abide’s fraud and kickback schemes. The first was Abide’s use of house doctors. … The second was Abide’s pay-for-referral system. … The third practice at Abide in which Nora was involved was known as ‘ghosting.’ … Aside from the evidence describing Nora’s general involvement in sometimes fielding Sutton’s referrals to Abide and his handling of Sutton’s payments, there is no specific evidence about whether he was involved with EvLa’s [patient for which Nora was charged with aiding and abetting healthcare fraud] experience at Abide or with her treatment by Dr. Jones.” Nevertheless, the jury convicted Nora on three counts, and he was sentenced to concurrent sentences of 40 months for each count and ordered to pay restitution to Medicare in the amount of $12,921,797.
  • Framing the issue, the Court noted, “There is no dispute that Nora worked at Abide while fraud and kickback schemes occurred, but what is in dispute is whether Nora knew that his work was unlawful. Or, legally, whether there was sufficient evidence introduced at trial for a rational juror to conclude beyond a reasonable doubt that Nora acted ‘willfully’ to defraud Medicare or to pay illegal health care kickbacks.” The Court answered that question in the negative: “While the Government presented evidence at trial detailing Nora’s role at Abide and his work responsibilities, the evidence did not prove that Nora understood Abide’s various practices and schemes to be fraudulent or unlawful, and thus there was insufficient evidence to conclude that Nora acted with “bad purpose” in carrying out his responsibilities at Abide. Furthermore, the evidence the Government points to as suggestive of Nora’s understanding of the unlawful nature of his work at Abide fails upon close inspection.”

• Tercero v. Texas Southmost College District, 19-40740, appeal from S.D. Tex.
  • Graves, J. (King, Graves, Oldham), employment, sovereign immunity, attorneys’ fees
  • Affirming in part, reversing in part, and remanding for further proceedings, district court’s vacatur of jury verdict in favor of plaintiff on breach of employment contract claims and reduction of award for procedural due process claim in $1.
  • The Court held that the district court erred in dismissing the plaintiff’s claims against the state junior college district on Eleventh Amendment sovereign immunity grounds, because the college district was not entitled to either sovereign immunity (which it had not invoked) or to governmental immunity (which it had sought t invoke). First, the Court noted that the college district was created under Texas law as an independent political subdivision, and was therefore not entitled to Eleventh Amendment sovereign immunity. The Court then held that the college district was also not entitled to governmental immunity because the Texas legislature had waived governmental immunity of political subdivisions for breach of contract claims. While the state act purported to only waive this immunity for suits in state courts, the Court held, “in the absence of constitutional sovereign immunity, a state cannot bar a federal court from exercising jurisdiction over claims that state courts would recognize and enforce.” So while the state could have waived governmental immunity as to suits in all courts, or not waived it at all, it could not partially waive its non-constitution-based governmental immunity. Accordingly, the Court reversed the dismissal of the breach of contract claims and remanded for the district court to consider the college district’s alternative arguments of insufficient evidence to support the jury verdict.
  • The Court then affirmed the district court’s reduction of the jury’s $12.5 million award for plaintiff’s procedural due process claim to $1, finding that the district court did not err in finding that there was insufficient evidence to show that plaintiff’s damages were caused by the procedural due process violation in her termination hearing.
  • The Court also reversed the district court’s vacatur of the attorneys’ fee award, holding that the reversal of the judgment on the breach of contract claim meant that the fee award was still proper, and remanded to the district court to consider the college district’s remaining arguments as to the breach of contract verdict and to determine what amount of fees was still available for the breach of contract claim.

• Weber v. BNSF Railway Co., 20-10295, appeal from N.D. Tex.
  • Willett, J. (Dennis, Higginson, Willett), employment discrimination, Americans with Disabilities Act
  • Affirming summary judgment dismissal of plaintiff’s claims that he was wrongfully terminated and that defendant had failed to provide appropriate disability accommodations under the ADA.
  • Plaintiff had been a train dispatcher for BNSF, and had a history of absenteeism, arising primarily from epilepsy episodes related to a brain tumor. His claims for failure to provide reasonable accommodations that were part of this appeal were for the denial of a request to reassign him to a non-safety sensitive assistant chief dispatcher (“ACD”) position, and to provide him with medical leave for a series fo episodes in 2016. The Court held that the issue common to both claims was the district court’s finding that plaintiff did not show that he was a “qualified individual with a disability,” the threshold element for a failure-to-accommodate claim.
  • “[T]o avoid summary judgment on the qualified-individual issue, Weber must show either (1) that he could perform the essential functions of his job in spite of his disability or (2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job.” (Internal quotation marks and citation omitted).
  • The Court held that the district court erred in its “qualified individual” analysis with regard to the ACD position because it only analyzed whether the plaintiff could perform the essential functions of his current dispatcher position but not the desired ACD position. Nevertheless, the Court affirmed on the alternative ground that there was no evidence that there was an available ACD position opening. With regard to the “qualified individual” analysis as to the denial of medical leave, the Court held that the district court was correct in finding that workplace attendance was an essential function of the dispatcher job, such that leave was not consistent with accommodating the performance of the essential functions.

• Grace Ranch, LLC v. BP America Production Co., 20-30224, appeal from W.D. La.
  • Costa, J. (Wiener, Costa, Willett), Burford abstention, jurisdiction
  • Reversing district court’s remand to state court on Burford abstention grounds of “legacy litigation” pollution claims invoking La. R.S. § 30:16, and remanding to district court for further proceedings.
  • The district court had held that it did have removal jurisdiction over the case, despite the Commissioner of the Louisiana Office of Conservation being required to be named as the beneficiary of any injunctive relief order in a private citizen suit under the Louisiana Environmental Quality Act (“LEQA”); but the district court ordered the case to be remanded to state court under Burford abstention on the basis that unsettled questions of the application of LEQA were potentially at issue.
  • The Court held first that there was subject-matter jurisdiction over the matter because the Commissioner of the Louisiana Office of Conservation was not a real party in interest (which would have been a fatal defect in diversity jurisdiction). “A private party suing under section 30:16 does so on its own behalf. The statute authorizes a ‘person in interest adversely affected’ by a violation of state conservation law to ‘bring suit to prevent any or further violations.’ La. Stat. Ann. § 30:16. Nowhere does the text signal that section 30:16 plaintiffs vindicate ‘the State’s interest’ through their suits or that these plaintiffs have been deputized to act ‘on the part of’ the State.” The Court also held that “Louisiana has only a general interest in the outcome of this suit,” insufficient to render it a “real party in interest.” Because 30:16 only requires the State’s presence if injunctive relief is awarded, the Court found that the necessity of the State’s presence is only contingent, in that injunctive relief may not be awarded for any number of reasons.
  • The Court then held that it has appellate jurisdiction to review a remand on abstention grounds. Turning to 28 U.S.C. § 1447(c) and (d), the Court held that the statute’s general bar on appellate review of remand orders only applied to “defects” in the removal, which would only apply to “deficiencies” or something lacking in the removal. Because the Court held that the abstention doctrine does not turn on removal deficiencies, an abstention-based remand is not within the scope of the bar on appellate review. “Making explicit what was previously implicit in our caselaw, a discretionary remand such as one on abstention grounds does not involve a removal ‘defect’ within the meaning of section 1447(c). We thus have jurisdiction to review the district court’s abstention-based remand order.”
  • The Court then turned to the particular application of Burford abstention in this case. The Court analyzed it through the five Aransas factors: “(1) whether the cause of action arises under federal or state law; (2) whether the case requires inquiry into unsettled issues of state law or into local facts; (3) the importance of the state interest involved; (4) the state’s need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review.” In this case, the Court held that the first two factors favored abstention, that the third factor leaned in favor of abstention, and that the last two factors weighed against abstention. In its pivot to the fourth element, the Court held, “With this fourth factor, Grace Ranch hits a roadblock. It does not show that federal resolution of this suit would disrupt Louisiana’s efforts to establish a coherent policy for the remediation of contaminated lands. We do not doubt that ‘states have a strong need for coherent policy in the regulation of finite natural resources.’ Aransas Proj., 775 F.3d at 651. But ‘the need for coherence is not alone a reason for abstention.’ Id. This factor is ‘intended to avoid recurring and confusing federal intervention in an ongoing state scheme.’ Wilson, 8 F.3d at 315. That kind of worrisome meddling is not a concern here. … Grace Ranch wants nothing more than an injunction against BP and BHP under section 30:16. A federal district court deciding whether to enjoin the defendants would apply Louisiana law and may have to reach the unsettled question of whether relief is available for past violations. But however the federal court rules, the Commissioner will still be able to bring lawsuits to enforce Louisiana’s conservation laws.”
  • Taking this factor-driven analysis under its belt, the Court concluded, “So the first three factors favor abstention to varying degrees and the last two counsel against it. Where does that leave us? The argument for abstention boils down to this: the case involves state law claims, with the potential need to decide an unsettled question of state law, in an area of general importance to the State. That is not nothing on the federalism side of the scale. But nor is it enough to have us refrain from our general duty to exercise the jurisdiction Congress has given us.”

Unpublished

• U.S. v. Cooper, 19-11254, appeal from N.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Townzen, 19-41064, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming sentence of 222 months’ imprisonment, three years’ supervised release, and a $100 special assessment on guilty plea conviction to conspiracy to possess with intent to distribute a synthetic cannabinoid.

• Ellis v. Barr, 20-10109, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), prisoner suit
  • Dismissing appeal of dismissal of prisoner’s suit, for lack of appellate jurisdiction.

• U.S. v. Harris, 20-30351, appeal from E.D. La.
  • per curiam (Davis, Stewart, Dennis), criminal, First Step Act
  • Affirming order denying motion for sentence reduction under First Step Act.

• U.S. v. Saragoza-Botello, 20-50786, appeal from W.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Granting summary affirmance of sentence of 46 months in prison and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry.

• Province v. Commissioner of Internal Revenue, appeal from U.S. Tax Ct.
  • per curiam (Clement, Higginson, Engelhardt), tax
  • Affirming summary judgment in favor of Commissioner where record evidence showed that petitioner had failed to participate in the due process that was afforded him.