Take the Fifth: March 24 & 25, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • National Parks Conservation Association v. U.S. Environmental Protection Agency, 17-60828, petition for review of EPA Rules
    • per curiam (Davis, Stewart, Dennis), administrative law, environmental law, venue
    • Denying motion to reconsider denial of motion by power company intervenors to confirm venue of review action in the Fifth Circuit rather than transfer venue of matter to the D.C. Circuit.
    • Petitioner environmental organizations had filed petition in Fifth Circuit for review of 2017 Texas Air Quality Implementation Plans (“the 2017 Rule”); the EPA then instituted a reconsideration of the 2017 Rule, and the petition was held in abeyance. In 2020, the EPA issued a new rule that amended in part and affirmed in part provisions of the 2017 Rule (“the 2020 Rule”). The petitioners then filed a petition challenging the 2020 Rule in the D.C. Circuit, followed by a “protective” petition in the Fifth Circuit. The intervenor power companies moved in the Fifth Circuit to consolidate the the petition challenging the 2017 Rule and the petition challenging the 2020 Rule, which was granted. The petitioners then moved to transfer the consolidated petitions to the D.C. Circuit, which the Court granted, which was then filed by this motion by the power company intervenors to reconsider.
    • The Court held that, because the challenge to the 2020 Rule was first filed in the D.C. Circuit, after the 2017 and 2020 petitions in the Fifth Circuit were consolidated the D.C. action was the first-filed, and therefore the proper venue to hear the challenges. “In order to help avoid the risk of conflicting decisions from continuing parallel litigation, however, and considering that review of the 2020 Rule will control or substantially influence review of the 2017 Rule, we believe the 2020 Rule should be the agency action relied upon for purposes of § 2112 and the ‘first-filed’ rule.”
  • Njilefac v. Garland, 20-60520, petition for review of BIA order
    • Haynes, J. (King, Smith, Haynes), immigration
    • Denying Cameroonian citizen’s petition for review of BIA order denying reconsideration of its order upholding IJ’s denial of application for asylum, withholding of removal, and protection under the Convention Against Torture, rejecting the petitioner’s arguments “that the Board did not adequately consider two declarations indicating that his counsel did not receive certain documents related to the proceedings.”
    • Petitioner argued that his attorney did not file a brief in his proceedings before the BIA because his attorney did not receive the briefing schedule and transcript of the proceedings before the IJ, and the IJ’s written decision that were mailed to him. The BIA’s decision then upholding the IJ’s decision was mailed to the same address, where it was received by his counsel.
    • The petitioner “submitted two declarations (one from his counsel and one from another attorney who shared the same mailbox) stating that his counsel never received the relevant documents. Those two declarations were signed ‘under penalty of perjury’—but did not represent that the statements were ‘true and correct.’ The attorney who shared the mailbox explained: ‘The postman delivers my mail into the same box as for [the law firm representing Nguhlefeh Njilefac]. Staff from either of our offices may collect mail. Neither I nor my staff, to my knowledge, have seen or received any mail pertaining to … Nguhlefeh Njilefac ….’ Nguhlefeh Njilefac’s attorney stated that she ‘searched [her] office thoroughly’ and did not receive the documents. However, nothing was said about whether any staff persons in that office had been surveyed to see if they received the documents. Neither attorney statement, then, conclusively negated the possibility their staff received the documents in question.”
    • The Court held that the BIA did not abuse its discretion in finding that the petitioner had failed to overcome the presumption that the materials had been delivered to his attorney.

Unpublished

  • Jackson v. Cruz, 19-10158, appeal from N.D. Tex.
    • per curiam (King, Smith, Haynes), prisoner suit
    • Dismissing appeal from non-final order for lack of jurisdiction.
  • U.S. v. Brotherton, 19-20816, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • Garret v. Lumpkin, 19-40559, appeal from S.D. Tex.
    • per curiam (Owen, Graves, Ho), prisoner suit
    • Remanding suit to district court to determine if transfer of prisoner to another unit mooted the matter.
  • U.S. v. Bravo, 20-10008, appeal from N.D. Tex.
    • per curiam (Elrod, Willett, Engelhardt), criminal, sentencing
    • Vacating sentence that attributed a certain amount of methamphetamine to defendant who pled guilty to possession of a firearm by a felon, and remanding for resentencing.
  • U.S. v. Whitehead, 20-10769, appeal from N.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, sentencing
    • Affirming denial of motion for sentence reduction.
  • U.S. v. Maxwell, 20-10788, appeal from N.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Affirming 262-month sentence on guilty plea to conspiracy to possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine.
  • U.S. v. Leal, 20-10790, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Dismissing appeal of sentence under appeal waiver in guilty plea.
  • U.S. v. Brown, 20-40210, appeal from E.D. Tex.
    • per curiam (Dennis, Higginson, Willett), criminal, sentencing
    • Affirming in part, vacating in part, and remanding for resentencing, on sentence for revocation of supervised release.
  • Harrison v. Lilly, 20-50687, appeal from W.D. Tex.
    • per curiam (Elrod, Willett, Engelhardt), employment
    • Affirming dismissal of plaintiff’s suit that she was terminated in retaliation for First Amendment protected speech, for failure to state a claim.
  • Davis v. U.S. Marshals Service, 20-60465, appeal from N.D. Miss.
    • per curiam (Elrod, Willett, Engelhardt), employment
    • Affirming dismissal of all but one of plaintiff’s claims arising from withdrawal of contingent offer of employment, and vacating dismissal of breach of contract claim for failure to state a claim and remanding with instructions to instead dismiss for lack of jurisdiction.
  • U.S. v. McLin, 20-60615, appeal from S.D. Miss.
    • per curiam (Jolly, Elrod, Graves), criminal, compassionate release
    • Affirming denial of motion for compassionate release.