Take the Fifth: March 10, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Hall CA-NV, LLC v. One Republic National Title Insurance Co., 20-10268, appeal from N.D. Tex.
    • Ho, J. (Clement, Ho, Duncan), breach of contract, insurance
    • Affirming dismissal of plaintiff’s suit for coverage for prior mechanic’s liens under title insurance policy, on basis that plaintiff had agreed to removal of such coverage.
    • Judge Ho does an excellent job of summarizing the issues in his nicely written introduction, so we’ll just quote the whole introduction here:
      • “Imagine a seller who typically offers two services, A and B. Now imagine that this seller tells a particular buyer that he is interested in selling him only service A—and not service B. The buyer agrees to these terms. But later, when it turns out that the buyer would have benefited from purchasing service B, the buyer turns around and claims that in purchasing service A, he actually purchased service B as well. The buyer then sues the seller for refusing to provide him with service B.
      • “You might think that it takes real chutzpah to bring that suit (and this appeal). And you would be right. Yet that is precisely what this suit presents.
      • “Plaintiff Hall CA-NV, LLC (Hall) purchased title insurance from Defendant Old Republic National Title Insurance Company (Old Republic). The parties contracted using standard title insurance policy forms designed by the American Land Title Association (ALTA).
      • “During that contracting process, Hall agreed to the removal of Covered Risk 11(a), the standard protection against losses from mechanic’s liens arising out of work begun on or before the policy date. Hall even expressly agreed to a separate, much more limited mechanic’s lien provision. Yet Hall now asserts that other contractual provisions—namely, Covered Risks 2 and 10—do just the work that Covered Risk 11(a) would have done.
      • “Old Republic understandably resists Hall’s post hoc attempt to shoehorn Covered Risk 11(a) into another provision of the contract. It points out that Hall’s interpretation of Covered Risks 2 and 10 would render Covered Risk 11(a) surplusage—and the parties’ decision to remove and replace Covered Risk 11(a) meaningless.
      • “Curiously, Hall’s reply brief does not even deign to respond. What’s more, at oral argument, Hall’s counsel was unable to identify a single scenario that would trigger coverage under Covered Risk 11(a) that would not also trigger coverage under its overbroad reading of Covered Risks 2 and 10.
      • “Needless to say, these are not the hallmarks of a worthy interpretive theory or persuasive appellate strategy. And it suggests that this is nothing more than a case of buyer’s remorse. We affirm.”
  • Perry v. San Antonio VHS Partners, LLC, 20-50356, appeal from W.D. La.
    • Jolly, J. (Jolly, Stewart, Oldham), employment discrimination, Title VII, § 1981
    • Affirming dismissal of doctor’s employment discrimination claims against hospital where he worked pursuant to a professional services agreement with a third party, Pediatric Inpatient Critical Care Services (“PICCS”), which in turn had a professional services agreement with the hospital, on the basis that there was no contractual or employment relationship between the doctor and the hospital (the doctor’s contractual claim against PICCS under § 1981 remains pending before the district court).
    • VHS (the hospital owner) had an agreement with PICCS to staff its pediatric intensive care and critical care units, with doctors that were required to meet a certain set of criteria, and subject to VHS’s CEO’s right to request immediate removal of any PICCS doctor, “in accordance with [North Central Baptist’s] Medical Staff Bylaws,” “if continued service by such [p]hysician could jeopardize patient care or safety.” In turn, Dr. Perry (the plaintiff) signed an agreement with PICCS that required him to also sign a Physician Agreement with VHS that required him to abide by the hospital’s Medical Staff Bylaws but also acknowledged that he was working as a contractor to PICCS through PICCS’s contract with VHS.
    • For purposes of the plaintiff’s Title VII claims, the Court held that VHS and PICCS did not constitute an integrated enterprise. Accordingly, VHS was not the doctor’s employer through integration with PICCS; and PICCS could not fall under Title VII because by itself it did not have at least 15 employees. The integrated-enterprise analysis looks to four factors: “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” The Court held that Dr. Perry only arguably met one of the factors, though the most important one. “[T]he first, third, and fourth factors indicate that VHS and. PICCS do not constitute an integrated enterprise. But the second and most important factor—centralized control of labor relations—as a general rule favors a finding that VHS and PICCS constitute an integrated enterprise. Nevertheless, this conclusion raises the question whether Dr. Perry’s satisfaction of the second factor, such as it may be, standing alone, creates a genuine dispute of material fact, precluding summary judgment on the integrated-enterprise theory. The district court thought not, and we agree.”
    • On Dr. Perry’s joint-employer theory, the Court came to the same conclusion. To determine if two entities who don’t qualify as integrated enterprise can nevertheless be treated as a joint employer, the Court applies a “hybrid economic realities/common law control test.” “The economic-realities component of the ‘hybrid economic realities/common law control test’ focuses on who paid the employee’s salary, withheld taxes, provided benefits, and set the terms and conditions of employment.” The Court held that the plaintiff could not present a sufficiently strong case to create a genuine issue of material fact on these factors.
    • The Court then affirmed the district court’s dismissal of the plaintiff’s § 1981 claim against VHS, which the plaintiff urged was based on the Physician Agreement. “The physician agreement was signed only by Dr. Perry, who executed the agreement ‘[i]n consideration of [his] approval by [VHS] to provide services’ at North Central Baptist Hospital. This language, however, refers to Dr. Perry meeting privileging credentials, not to any formal approval by VHS. Under the physician agreement, Dr. Perry agreed that he understood that he was bound by the terms of the coverage agreement between VHS and PICCS. He also agreed that North Central Baptist’s ‘Medical Staff Bylaws shall control my termination of Medical Staff Membership and/or clinical membership.’ VHS, on the other hand, is not shown to have agreed to anything. It follows, then, that Dr. Perry failed to identify any right under the physician agreement that he seeks to ‘make and enforce’ against VHS.”
  • U.S. v. Baltazar-Sebastian, 20-60067, appeal from S.D. Miss.
    • Barksdale, J. (Barksdale, Southwick, Graves), criminal, civil detention
    • Vacating district court’s order to enforce defendant’s release pending criminal trial under Bail Reform Act and to preclude Immigration and Customs Enforcement’s civil detention of defendant under the Immigration and Naturalization Act during pendency of criminal proceedings.
    • The Court held that the BRA (and the release order issued pursuant to the BRA) did not supersede the INA (and the civil detention ICE was pursuing under the INA). “Whether the BRA and INA conflict is of first impression in our circuit. … Fundamentally, the BRA and INA concern separate grants of Executive authority and govern independent criminal and civil proceedings. … Nothing in the text of the BRA or INA evinces any order of precedence between the statutes. … Allowing detentions under the INA outside of § 3142(d) in no way disregards this process; it leaves it entirely intact and concerns a different class of defendants.”
  • Sierra Club v. U.S. Department of Interior, 20-60319, and 20-60299, petition for review of order of the Department of Interior
    • King, J. (King, Elrod, Willett), administrative law, environmental law, Endangered Species Act
    • In these two related petitions for review, the Court denied the petition for review of an incidental take statement and biological opinion from the U.S. Fish & Wildlife Service allowing the take of one ocelot or jaguarundi in the construction and operation of a $5.2 billion liquefied natural gas terminal on a 731-acre parcel on the south bank of the Brownsville Ship Channel in Cameron County, Texas, and a multi-billion-dollar natural gas pipeline project through south Texas. “Specifically, at issue is whether the Service complied with its obligations under the Endangered Species Act … in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.”
    • After formal consultation and review between FERC and USFWS, the terminal was moved 1800 feet from its originally planned location and the pipeline alignment and lighting plan were adjusted, and the USFWS determined “that the project would likely harm or harass only one cat during construction and the life of the project, and this single ‘take’ was simply not enough to jeopardize the cats’ continued existence.”
    • The Court held that the incidental take statement was neither arbitrary nor capricious. The Court found that it set a clear take limit, had a clear and enforceable trigger for reinitiation of formal consultation, and that the conservation measures were sufficiently integrated into the agency action. “[T]he failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”
    • The Court then held that the no-jeopardy finding was also not arbitrary and capricious. The Court found that the exclusion of each of the projects (the terminal and the pipeline) from the other’s biological opinion was not arbitrary and capricious because they were outside of the other’s respective “action area,” and that the agency’s delineation of the action areas was entitled to deference. The Court also rejected the petitioners’ cumulative effects challenge. “Although courts have found that a cumulative effects analysis was deficient where there was ‘no analysis whatsoever,’ see Greenpeace v. Nat’l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000), this is not the case here. The Service’s effects analysis accounted for the effects of each project against the baseline and the cats’ survival and recovery. Indeed, the Service provided a detailed analysis of direct effects of the project on the ocelot and jaguarundi such as habitat loss, human disturbance, operational noise, vehicle collisions, and light emissions.”
    • The Court concluded, “Plainly put, the Service has identified the reasons underlying its conclusion that the ocelot and jaguarundi’s continued existence would not be jeopardized by the project, and it has articulated a rational connection between these reasons and that conclusion. This is all that the ESA and its implementing regulations require.”

Unpublished

  • Sharan v. Wilkinson, 19-60774, petition for review of BIA order
    • per curiam (Haynes, Willett, Ho), immigration
    • Denying Jordanian citizen’s petition for review of BIA denial of his application for a waiver of inadmissibility.
  • Colbert v. Wells Fargo Bank, N.A., 20-10394, appeal from N.D. Tex.
    • per curiam (Jolly, Stewart, Oldham), foreclosure, breach of contract
    • Affirming in part, reversing in part, and remanding from the district court’s dismissal of plaintiff’s post-foreclosure claims under tort, contract, and the Texas Debt Collection Act.
  • Duckett v. Uber Technologies, Inc., 20-20236, appeal from S.D. Tex.
    • per curiam (Haynes, Willett, Ho), breach of contract
    • Affirming district court’s summary judgment dismissal of plaintiff’s suit against Uber for $50 billion for failure to remit toll expenses.
  • U.S. v. Allen, 20-20335, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • U.S. v. Perez, 20-20450, appeal from S.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming 42-month sentence for illegal reentry after a felony conviction.
  • U.S. v. Castillo, 20-40460, appeal from S.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Affirming 216-month sentence for conspiracy to possess with intent to distribute more than 50 grams of methamphetamine.