Take the Fifth: March 15, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Dubin, 19-50912, appeal from W.D. Tex.
    • per curiam (En banc), criminal, fraud, sufficiency of evidence, timeliness, restitution, sentencing
    • Ordering case to be reheard en banc, vacating December 4 panel opinion (Barksdale, Elrod, Ho; Elrod, concurring) that affirmed conviction and sentence for defendants’ charged scheme to defraud Texas’s Medicaid program.
  • Jones v. Michaels Stores, Inc., 20-30428, appeal from M.D. La.
    • Costa, J. (Higginbotham, Costa, Oldham), arbitration, employment
    • Affirming district court’s judgment confirming arbitral award in favor of employer.
    • Employee had brought arbitration against employer after termination, pursuant to the arbitration provision in her employment agreement, and lost that arbitration. She then brought a a lawsuit bringing claims under Title VII, which the parties agreed to stay pending a second arbitration. The second arbitrator held that the Title VII claims were barred by res judicata from the first arbitral award. The employee then brought a motion in the district court to vacate that arbitral award, not under one of the four statutory bases under the Federal Arbitration Act, but on the independent basis that the arbitrator manifestly disregarded Louisiana law on res judicata. The employer brought a motion to confirm the arbitral award. The district court held that there was uncertainty about whether the manifest-disregard standard is viable in the Fifth Circuit, and then confirmed the award on a finding that the arbitrator had not manifestly disregarded Louisiana law.
    • The Court held that this appeal was “an opportunity to emphasize at least one thing that we have directly resolved: ‘manifest disregard of the law as an independent, nonstatutory ground for setting aside an award must be abandoned and rejected.'” (Internal citation omitted).

Unpublished

  • Network of Neighbors, Inc. v. Pendergraft, 19-20512, appeal from S.D. Tex.
    • per curiam (Haynes, Clement, Elrod), bankruptcy
    • Dismissing as frivolous appeal from judgment dismissing adversarial proceeding in bankruptcy after appellants had already lost their argument all the way up through a denial of cert to the Supreme Court.
  • U.S. v. James, 19-20859, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • Jimenez v. Butcher, 19-50499, appeal from W.D. Tex.
    • per curiam (Jolly, Southwick, Costa), habeas corpus, equitable tolling
    • Vacating district court’s dismissal of petitioner’s habeas petition as untimely, on the basis it was equitably tolled, and remanding for consideration of the merits of the petition.
  • U.S. v. Quezada, 20-10640, appeal from N.D. Tex.
    • per curiam (Owen, Ho, Engelhardt), criminal, sentencing
    • Affirming 480-month sentence of imprisonment after guilty plea to conspiracy to possess with intent to distribute at least 50 grams of methamphetamine.
  • U.S. v. Crawford, 20-10904, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, First Step Act
    • Dismissing appeal of denial of compassionate release, and affirming denial of motion for sentence reduction under the First Step Act.
  • Ashraf v. United Airlines, Inc., 20-20526, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), employment, standing
    • Affirming dismissal of employee’s challenge to denial of union challenge to his termination, for lack of standing.
  • U.S. v. King, 20-30393, appeal from W.D. La.
    • per curiam (Owen, Ho, Engelhardt), criminal, sentencing
    • Affirming above-guidelines 240-months sentence of imprisonment on guilty plea to three counts of carjacking.
  • U.S. v. Schilling, 20-30580, appeal from W.D. La.
    • per curiam (King, Smith, Wilson), criminal, sentencing
    • Affirming within-guidelines sentence of 168 months’ imprisonment on guilty plea to one count of distribution of child pornography.
  • U.S. v. Hernandez-Villanueva, 20-50466, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, ineffective assistance of counsel
    • Affirming conviction on conspiracy to distribute and possess with intent to distribute cocaine,possession with intent to distribute cocaine and aiding and abetting, and possession of firearms in furtherance of a drug-trafficking crime and aiding and abetting; rejecting argument that defendant’s trial counsel rendered ineffective assistance in failing to challenge properly the Government’s use at trial of an English-language transcription of certain recorded statements made in Spanish.
  • Lowe’s Home Centers, LLC v. National Labor Relations Board, 20-60472, appeal from a petition for review of a decision of the NLRB
    • per curiam (Davis, Stewart, Dennis), employment, labor law
    • Affirming NLRB decision that Lowe’s employment policy prohibiting the disclosure of confidential information violated § 8(a)(1) of the National Labor Relations Act, which prevents employers from limiting employees’ discussion of their wages.