Take the Fifth

Designated for publication

• Williams v. Lockheed Martin Corp., 18-31162, appeal from E.D. La.
  • Owen, C.J. (Owen, Willett, Oldham), federal officer jurisdiction, asbestos, sanctions
  • Denying petition for en banc rehearing, granting petition for panel rehearing, vacating panel opinion, and issuing new decision affirming district court’s denial of motion to remand, summary judgment dismissal of asbestos-exposure claims, and imposition of sanctions on plaintiffs’ counsel for improper ex parte communications.
  • In examining jurisdiction, the Court spent the most time on the “colorable federal defense” element of federal officer jurisdiction, and held that, under the Boyle analysis, the removing defendant did not need to concede that it had used asbestos by showing that asbestos was required by NASA’s specifications–but only that NASA specified the materials to be used–such that, if the plaintiff then proved that asbestos was among the materials used that it had to be because of NASA’s specifications. The Court then held that the federal court did not lose jurisdiction once the plaintiffs dropped their claim that the decedent had been exposed to asbestos while working on the external fuel tanks at Lockheed’s facility.
  • As to the summary judgment dismissal of the claims against Lockheed, the Court held that the plaintiffs had not provided evidence with the requisite temporal specificity to create a genuine issue of the material fact of significant exposure to asbestos at Michoud prior to the 1975 effective date of the Louisiana Workers Compensation Act, which provided the exclusive remedy for workplace exposure claims against employers accruing after that date.
  • The Court then held that the magistrate judge did not abuse her discretion in finding that the plaintiffs’ counsel acted intentionally when contacting the decedent’s former supervisor at Lockheed directly, rather than through counsel, upholding a sanctions award of $10,000.

• Hewitt v. Helix Energy Solutions Group, Inc., 19-20023, appeal from S.D. Tex.
  • per curiam; Fair Labor Standards Act
  • Vacating panel opinion of December 21, 2020, and ordering case to be reheard en banc. Panel opinion had been entered on granting the petition for panel rehearing, and reversed district court’s judgment that highly compensated executive employee who was paid based on a daily rate was a professional salaried employee exempt from the FLSA’s overtime provisions.

• U.S. v. Emakoji, 20-10363, appeal from N.D. Tex.
  • Smith, J. (Jones, Smith, Elrod), Elrod, J., concurring in part and dissenting in part; criminal, COVID-19
  • Dismissing appeal of denial of continuance of sentencing re-arraignment for lack of jurisdiction, and affirming order that defendant procure housing within the Northern District of Texas.
  • Defendant had pled guilty in a “romance scheme” to engaging in a monetary transaction in property derived from a specified unlawful activity. After entering into his plea agreement, the district court scheduled an in-person re-arraignment, and denied two motions by the defendant to continue the re-arraignment or to conduct it via teleconference due to concerns over COVID-19. After denying the second motion for continuance, the district court entered an order that the defendant must procure housing in the Northern District of Texas, modifying an earlier order that had allowed the defendant to stay residing in Alabama pending sentencing.
  • The Court held that, under the collateral order doctrine, it did not have jurisdiction to hear an appeal of the orders denying the motions for continuance. “We apply that already-narrow [collateral order] exception [to exercising appellate jurisdiction only over final judgments] with the utmost strictness in criminal cases, generally limit[ing] it to the denial of only three types of motions: (1) motions to reduce bail; (2) motions to dismiss on double jeopardy grounds, and (3) motions to dismiss under the Speech or Debate Clause. An order to appear at an in-person rearraignment does not fall within any of those categories.” (Internal quotation marks and footnotes omitted).
  • The Court held that it did have jurisdiction over the housing order, as part of its authority to hear appeals from release or detention orders. The Court then affirmed the housing order, holding that the housing order was necessary to secure the defendant’s appearance and that it was reasonable (applying the test from the excessive bail context). “A defendant’s desire to plead guilty via video does not hamstring a district court’s discretion to require an in-person appearance. … The decision whether to hold in-person proceedings during the pandemic fall[s] within the discretion of the district court. Thus, where a defendant expresses his reluctance to appear at such an in-person hearing, a district court can reasonably amend release conditions to ensure his appearance.” On defendant’s procedural due process argument, the Court held that the district court was not required to hold a new hearing before modifying the release order.
  • Judge Elrod dissented in part, dissenting from the portion of the decision affirming the housing order. Judge Elrod would have dismissed that portion of the appeal for lack of jurisdiction as being unripe. “Although the order requiring Emakoji to relocate from Alabama to Texas sounds mandatory on its face, it was unlikely to ever take effect. The district court gave Emakoji thirty days to find a new residence in the Northern District of Texas. But the court imposed this new condition only four days before the re-arraignment hearing was scheduled to take place. As the government has pointed out, ‘Emakoji was to be subject to presumptive detention under 18 U.S.C. § 3143(a) and review of his conditions of release immediately upon his plea of guilty.’ Once Emakoji pleaded guilty, the district court would have been required either to order that he be detained or, if it had found ‘by clear and convincing evidence that [Emakoji was] not likely to flee or pose a danger to the safety of any other person or the community,’ release him pending his sentencing.”

• Byrd v. Lamb, 20-20217, appeal from S.D. Tex.
  • per curiam (King, Elrod, Willett), Willett, J., specially concurring; excessive force, Bivens claim
  • Reversing district court’s denial of defendant’s motion to dismiss Bivens claims against Homeland Security agent for alleged use of excessive force to compel an unlawful seizure.
  • The Court held that the plaintiff’s claim arose “in a new context” from the recognized categories of Bivens claims, and then held that it presented special considerations that counseled against the extension of Bivens. “Congress did not make individual officers statutorily liable for excessive-force or unlawful-detention claims, and the ‘silence of Congress is relevant.’ Abbasi, 137 S. Ct. at 1862. This special factor gives us ‘reason to pause’ before extending Bivens.”
  • Judge Willett specially concurred, noting, “Middle-management circuit judges must salute smartly and follow precedent. And today’s result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens.” He then noted, “[R]edress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone. Bivens today is essentially a relic, technically on the books but practically a dead letter, meaning this: If you wear a federal badge, you can inflict excessive force on someone with little fear of liability. … A written constitution is mere meringue when rights can be violated with nonchalance. I add my voice to those lamenting today’s rights-without-remedies regime, hoping (against hope) that as the chorus grows louder, change comes sooner.”

• Aldridge v. Mississippi Department of Corrections, 20-60311, appeal from S.D. Miss.
  • Wiener, J. (Wiener, Dennis, Duncan), Fair Labor Standards Act, preemption
  • Affirming district court’s dismissal of FLSA claims by employees of state department of corrections on sovereign immunity grounds, and dismissal of all state law claims for overtime and minimum wage violations on the basis that they were conflict-preempted by the FLSA–even where Mississippi state law had no specific statutes regarding overtime and minimum wage but the plaintiffs were only relying on principals of tort law.
  • The Court held, “Here, it is clear that there is a conflict. Congress’s intent in enacting the FLSA was to protect workers from unfair working conditions and from receiving inadequate pay. Employees in this case have a private right of action under the FLSA against employers for unpaid minimum wages and overtime compensation. It is not ‘impossible’ to comply with both federal and state law unpaid minimum wages and overtime compensation requirements, the first instance in which conflict preemption applies. However, [t]he rule of state tort law for which [Employees] argue would stand as an ‘obstacle’ to the accomplishment of that objective, namely, protecting workers from overwork and underpayment. In other words, the purposes of the two laws overlap with each other and thus the federal law must control.”

Unpublished

• U.S. v. Robinson, 19-11079, appeal from N.D. Tex.
  • per curiam (Jones, Clement, Graves), criminal, sentencing
  • Affirming 340-month sentence imposed following defendant’s conviction for conspiring to possess with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin.

• U.S. v. Mtaza, 19-20280, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Oldham), Haynes, J., dissenting in part; criminal, forfeiture
  • Affirming district court’s summary judgment dismissing defendant’s motion for return of property.

• U.S. v. Winans, 19-30356, appeal from E.D. La.
  • per curiam (Wiener, Southwick, Duncan), criminal
  • Affirming convictions of co-defendants on counts of bank robbery, carjacking, and brandishing a firearm during and in relation to a crime of violence.

• Richardson v. Belote, 19-40282, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), prisoner suit
  • Affirming dismissal of prisoner’s civil rights complaint.

• Singh v. Wilkinson, 19-60664, petition for review of BIA order
  • per curiam (Wiener, Southwick, Duncan), immigration
  • Denying in part and dismissing in part Indian citizen’s petition for review of BIA dismissal of his appeal from the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.

• Clark v. Thompson, 20-10568, appeal from N.D. Tex.
  • per curiam (Jones, Clement, Graves), § 1983
  • Affirming dismissal of claims that defendant officers lacked probable cause to take plaintiff in for a mental health evaluation.

• U.S. v. Chappa, 20-10779, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Pearce v. Doe, 20-20372, appeal from S.D. Tex.
  • per curiam (Higginbotham, Costa, Oldham), qualified immunity
  • Reversing district court’s denial of qualified immunity to defendant FBI agent who killed a kidnapping victim in the course of the rescue/apprehension.

• U.S. v. Smith, 20-30633, appeal from M.D. La.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming 24-month sentence for being a felon in possession of a firearm.

• U.S. v. Arzon, 20-40350, appeal from E.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming 135-month sentence on guilty plea to conspiracy to possess with intent to distribute five kilograms or more of cocaine hydrochloride.

• U.S. v. Mayor-Currichich, 20-50782, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Granting summary affirmance of sentence for illegal reentry and revocation of supervised release.

• Shrimpers and Fishermen of the RGV v. U.S. Army Corps of Engineers, 20-60281, petition for review of a decision of the U.S. Army Corps of Engineers
  • per curiam (King, Elrod, Willett), administrative law
  • Holding in abeyance appeal of Corps’ issuance of permit for natural gas pipeline, in light of redesign of pipeline and resulting suspension of permit for Corps reconsideration.

• Liberty Mutual Fire Insurance Co. v. Fowlkes Plumbing, LLC, 20-60742, appeal from N.D. Miss.
  • per curiam (Higginbotham, Costa, Oldham), insurance
  • Affirming denial of motion to alter or amend judgment of district court dismissing plaintiff’s insurance coverage suit in accordance with remand instructions of Court from prior appeal.