Take the Fifth

Designated for publication

• U.S. v. Brune, 19-11360, appeal from N.D. Tex.
  • Smith, J. (Jones, Smith, Elrod), criminal, double jeopardy
  • Affirming conviction of defendant for possess with intent to distribute a mixture and substance containing more than 50 grams of methamphetamine.
  • In the charging instrument, the government had misstated the statutory citation for the charged crime, including the subsection of the statute that provided the baseline penalty for any amount of methamphetamine, rather than the subsection that prohibited possession with intent to distribute more than 50 grams. After the defendant pled guilty, referencing the correct statutory citation nine times, the magistrate reported the guilty plea to the district court, copying the charging instrument’s misstated subsection citation, which resulted in a recommendation of 20 years as the minimum sentencing range under the incorrect subsection instead of the 40 years under the correct subsection. The district court corrected the citation and sentenced defendant under the enhanced range for the higher amount of methamphetamine.
  • The Court held that jeopardy never attached to the original acceptance of the guilty plea and mistaken-citation recommendation, such that there was no double jeopardy in the district court’s correction of the citation and imposition of the enhanced sentence. “[J]eopardy does not always attach upon acceptance of a guilty plea.” To determine when it attached in this case, the Court considered “(1) Brune’s finality interest and (2) prevention of prosecutorial overreach.” The Court held, “In short, Brune intended to plead guilty to subparagraph B. Because the government botched its citations, he now seeks an undeserved windfall by shaving years off his sentence. In other words, Brune seeks to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution of subparagraph B—a contingency that Johnson sought to avoid. Brune’s finality interest is nil.” (Internal quotation marks and citations omitted).

• Alejos-Perez v. Garland, 19-60256, petition for review of BIA order
  • Smith, J. (Higginbotham, Smith, Dennis), immigration
  • Reversing BIA order dismissing appeal of Mexican Citizen from IJ’s order of removal, and remanding, holding that Texas state conviction for possession of a controlled substance was not a removable offense.
  • The Court held, “A state-drug-possession conviction renders an alien removable only if the elements that make up the state crime of conviction relate to a federally controlled substance. Courts must therefore (1) identify the elements that make up the state crime of conviction and then (2) determine whether those elements relate to a federally controlled substance.” (Internal quotation marks and citations omitted).
  • Laying out the process for determining whether a state conviction is a removable offense, the Court held, “Alejos-Perez possessed MMB-Fubinaca, which, he agrees, is a federally controlled substance. But Penalty Group 2-A also includes at least one substance that isn’t federally controlled. Thus, to decide whether his 2018 conviction renders him removable, we need to determine whether we can parse MMB-Fubinaca from those other drugs; we decide that by determining whether Penalty Group 2-A is divisible.” The Court held that the statutory text, state case law, and record of conviction were inconclusive, and that the government therefore failed to meet its burden of showing that the state-law penalty group was divisible.
  • The Court therefore applied the “categorial approach,” rather than the “modified categorical approach,” and held that, because the state-law Penalty Group 2-A criminalized possession of at least one substance that is not a federal controlled substance, the state law was broader than the federal law and could not be used as a precursor to removability.
  • The Court therefore remanded to the BIA for determination of issues it had not yet ruled on.

• Atkins v. CB&I, LLC, 20-30004, appeal from W.D. La.
  • Costa, J. (Jolly, Southwick, Costa), ERISA
  • Vacating the judgment of the district court that a performance incentive plan was an ERISA-governed severance plan, and remanding plaintiffs’ Louisiana Wage Law claim to the district court to remand to state court. Because the plan at issue did not require ongoing administration, concerned a one-time, easily calculated lump-sum payment, and did not require complex exercise of discretion in determining eligibility, the Court held that it was not a severance plan that would be governed by ERISA.

• Newbury v. City of Windcrest, 20-50067, appeal from W.D. Tex.
  • Smith, J. (Jones, Smith, Elrod), Title VII, employment discrimination
  • Affirming summary judgment dismissal of plaintiff police officer’s employment discrimination claims against police department, from which she resigned during her first, probationary year.
  • The Court held that the plaintiff’s claim failed at the first step of the same-sex sexual discrimination analysis, because she failed to show that the rude conduct to which she was subjected was sex discrimination. “Title VII is not a general civility code for the American workplace. Newbury has provided evidence only that Jaime is rude to some colleagues and friendly to others. Her allegation that Jaime’s rudeness was motivated by sexual animus is speculative and unsupported by the record.” (Internal quotation marks and citation omitted).
  • The Court also rejected plaintiff’s argument that summary judgment was improper as to her constructive discharge claim, holding that she had failed to produce sufficient evidence to establish a hostile work environment. “The harassment that Newbury alleges—two confrontations and general unfriendliness—falls far short.”
  • The Court also upheld summary judgment on plaintiff’s retaliation claim, as it held that she had suffered no adverse employment action.
  • The Court also upheld the summary judgment dismissal of plaintiff’s § 1983 claim arising from her claims that she was surreptitiously recorded from her body cam while off duty and inside her home, as plaintiff had offered no evidence to countervail the camera manufacturer’s testimony that remote recording from the body camera was not possible, and offered no evidence that anyone possessed recordings of her activities while inside her home.

• Transverse, LLC v. Iowa Wireless Services, LLC, 20-50271, appeal from W.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Dennis), breach of contract, attorneys’ fees
  • Reversing in part district court’s judgment on competing attorney fees claims, and remanding.
  • The Court held that, under the Texas Theft Liability Act, the district court had imposed an excessively strict standard as to segregation of TTLA-related fees incurred from fees incurred in litigation on other claims. “Texas provides no general rule for determining when claims are sufficiently intertwined to come within the exception. But the Texas Supreme Court has deemed the exception applicable where, for instance, a plaintiff in a breach-of-contract case must overcome related counterclaims in order to recover on that claim. Here, certain disclosure claims have an analogously close legal relationship to the TTLA claim. Although the abstract claim elements are different, the district court believed that each disclosure claim was subject to the same proof, given that all turned on the legal significance of IWS’s alleged disclosure of meeting notes to Transverse’s competitor.”
  • The Court also held that, where the TTLA mandated an award of attorneys’ fees, the district court’s traditional discretion in determining the amount of fees did not extend to denial of fees altogether.
  • The Court then held that the district court erred in applying Texas law to award fees to the other party, who had prevailed on a breach of contract claim, where the contract at issue contained an Iowa choice-of-law provision and the application of Texas conflict-of-laws analysis required compliance with that provision. Because Iowa law does not allow for an award of fees on breach-of-contract claim, the Court reversed the award of fees attributable to that claim.
  • The Court then affirmed the district court’s ruling that the party who was found to have had an NDA breached against it, but was then the recipient of a take-nothing judgment, was not the prevailing party on the NDA claim and was not entitled to fees under the NDA.

• Texas Education Agency v. U.S. Department of Education, 20-60051, petition for review of order of the Dept. of Education
  • Smith, J. (Higginbotham, Smith, Dennis), sovereign immunity
  • Vacating award of damages to whistleblower against Texas Education Agency on basis that TEA was entitled to sovereign immunity from claims brought before the federal Department of Education, and remanding for entry of dismissal.
  • The National Defense Authorization Act of 2013 prohibits any recipient of federal funds from retaliating against a whistleblower who reports an abuse of those funds. An employee of TEA reported a misuse of federal funds by TEA; after subsequently being terminated, which TEA claimed was for legitimate reasons, the employee brought a petition before the U.S. DOE, which found in the employee’s favor and awarded damages against TEA.
  • The Court held that there was no applicable exception here to the general rule that states are immune from adjudication in federal agency proceedings initiated by private parties just as they are from suit in federal court brought by private parties. First, the Court rejected the res nova argument that a whistleblower action should be treated as being an action brought by the federal government. “[A]t most, … the United States is a party in interest in the whistleblower-retaliation proceeding. But the United States certainly did not commence the action; Kash, a private citizen, triggered the investigation by filing a complaint with the OIG. Nor did the United States prosecute the action; the OIG investigator played a neutral role in determining whether to recommend ordering or denying relief[.]”
  • The Court also rejected DOE’s contention “that the NDAA conditions the acceptance of any federal grant or contract on waiving immunity from whistleblower retaliation claims related to that grant or contract.” Because the waiver must be clear and knowing, which is applied as a “stringent” requirement, the Court held the NDAA’s waiver failed to meet the standard. “The NDAA does not mention states, leaving it ambiguous whether it applies to them. And other whistleblower retaliation provisions, such as the provision in the American Recovery and Reinvestment Act, do, demonstrating that Congress knows how to make such provisions’ application to states clear. Moreover, the NDAA makes no mention of sovereign immunity or the Eleventh Amendment. Though we have not required the ‘talismanic incantations of [the] magic words,’ ‘waiver’ or ‘condition,’ the caselaw shows that we have tended to require that the statute at least mention immunity. The NDAA does not, and therefore the TEA did not knowingly waive immunity.”

Unpublished

• U.S. v. White, 19-30378, appeal from E.D. La.
  • per curiam (Jones, Barksdale, Stewart), habeas corpus
  • Vacating district court’s denial of § 2255 petition, and remanding for district court to conduct evidentiary hearing.

• Vann v. Paxton, 19-40725, appeal from E.D. Tex.
  • per curiam (Dennis, Southwick, Engelhardt), § 1983
  • Dismissing appeal as frivolous.

• U.S. v. Perez, 19-41049, appeal from S.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Affirming below-guidelines sentence of 156 months in prison, imposed following defendant’s guilty plea to conspiracy to possess with intent to distribute a synthetic cannabinoid mixture and substance containing a detectable amount of a Schedule 1 controlled substance.

• Chavez-Torres v. Garland, 19-60392, petition for review of BIA order
  • per curiam (Higginbotham, Jones, Costa), immigration
  • Denying petition by Mexican citizen to review BIA order denying his motion to reopen.

• Rojas v. Garland, 19-60602, petition for review of BIA order
  • per curiam (Haynes, Willett, Ho), immigration
  • Denying Cuban 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.

• Rodriguez v. Garland, 19-60930, petition for review of BIA order
  • per curiam (Higginbotham, Jones, Costa), immigration
  • Dismissing Mexican citizen’s petition to review BIA decision that his waiver was voluntary, for lack of jurisdiction.

• U.S. v. Trejo, 20-10460, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, guilty plea
  • Affirming defendant’s guilty plea conviction for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.

• U.S. v. Hankins, 20-10610, appeal from N.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. McCall, 20-10959, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Granting summary affirmance of 180-month sentence for possession of a firearm by a felon.

• U.S. v. Walker, 20-30282, appeal from E.D. La.
  • per curiam (Barksdale, Graves, Oldham), criminal, First Step Act
  • Affirming district court’s denial of sentence reduction under the First Step Act.

• Hernandez v. Egwe, 20-40089, appeal from E.D. Tex.
  • per curiam (Jones, Barksdale, Stewart), prisoner suit
  • Dismissing as frivolous appeal of dismissal of prisoner suit alleging deprivation of liberty by violation of protocol for packing inmate’s belongings.

• Miller v. Dricks, 20-40279, appeal from S.D. Tex.
  • per curiam (Jones, Clement, Graves), qualified immunity, excessive force
  • Affirming in part and reversing in part summary judgment dismissal of excessive force claims against three officers, and remanding for further proceedings against officer who administered the injurious blows.

• U.S. v. Castro-Villalobos, 20-40370, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Affirming Anders motion to withdraw, and dismissing appeal.

• Pittman v. U.S. Bank, N.A., 20-40723, appeal from E.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), foreclosure
  • Affirming dismissal of mortgagee’s claims against mortgage-holder arising from foreclosure.

• U.S. v. Mangiapane, 20-50519, appeal from W.D. Tex.
  • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
  • Affirming revocation sentence.

• Sanchez-Hernandez v. Garland, 20-60007, petition for review of BIA order
  • per curiam (Clement, Higginson, Engelhardt), immigration
  • Denying in part and dismissing in part El Salvadoran citizen’s petition for review of BIA dismissal of his appeal without opinion from the denial by an Immigration Judge (IJ) of his motion to reopen.

• Sivalingam v. Garland, 20-60036, petition for review of BIA order
  • per curiam (Wiener, Southwick, Duncan), immigration
  • Denying Sri Lankan citizen’s petition for review of BIA dismissal of his appeal of an IJ order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture.