June 16, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Retana v. Twitter, Inc., 19-11389, appeal from N.D. Tex.
    • Wiener, J. (Wiener, Costa, Willett), Anti-Terrorism Act
    • Affirming 12(b)(6) dismissal of claims against Twitter, Google, and Facebook under the Anti-Terrorism Act under a theory of liability for aiding and abetting terrorism as a social media platform on which a third party, Hamas, radicalized the perpetrator of a mass shooting in Dallas.
    • Congress extended the liability under the Anti-Terrorism Act from just perpetrators of violence to secondary liability for persons or organizations assisting someone who commits an act of terrorism under the Justice Against Sponsors of Terrorism Act. Under JASTA, liability attaches to a secondary-liability entity such that “a plaintiff injured by (1) an ‘act of international terrorism’ that is (2) ‘committed, planned, or authorized’ by a designated foreign terrorist organization (3) may assert ‘liability … as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.'”
    • Holding that the Dallas shooting by Micah Johnson “was committed by a lone shooter entirely within the United States,” the Court held that “[w]e cannot conclude that the Dallas shooting transcended national boundaries,” and that it was therefore not an “act of international terrorism.” Even if Johnson “might have been radicalized in part by Hamas,” the Court held that “Hamas did not plan the shooting or even take credit for it.”
    • Additionally, the Court held that the plaintiffs did “not sufficiently allege that [social media] Defendants ‘knowingly’ and ‘substantial[ly]’ assisted Johnson or even Hamas.” The Court adopted the test articulated by the D.C. Circuit in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983): “Halberstam identified three factors for determining secondary liability: ‘(1) [T]he party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.’ The Halberstam court then identified six factors of ‘how much encouragement or assistance is substantial enough’ to satisfy the third factor: (1) the nature of the act encouraged; (2) the amount of assistance given by the defendant; (3) the defendant’s presence or absence at the time of the tort; (4) the defendant’s relation to the principal; (5) the defendant’s state of mind; and (6) the period of the defendant’s assistance.”
    • The Court held there was no relationship between Hamas and the social media defendants or between Johnson’s acts and Hamas; that the mere “liking” of online Facebook posts did not impart the required nexus. “Further, Defendants could not have been aware of Hamas’s role in the Dallas shooting because Hamas played no role in that shooting. Neither did Defendants.”
  • Crawford v. Hinds County Board of Supervisors, 20-60372, appeal from N.D. Miss.
    • Smith, J., (Smith, Ho, Barker (by desig.)), Ho, J., concurring; Americans with Disabilities Act, standing
    • Reversing district court’s dismissal for lack of standing.
    • Plaintiff’s injunctive claim under the ADA arose from his inability to serve on a jury in part because the architecture of the Hinds County Courthouse prevented him from accessing the proceedings in his wheelchair. The district court dismissed for lack of standing upon a finding that it was too speculative that the plaintiff would again be excluded from jury service.
    • The Court harmonized two prior en banc decisions regarding claims arising from jury duty and the standing of the plaintiffs in those cases as providing the rule that “a plaintiff with a substantial risk of being called for jury duty has standing to seek an injunction against a systemic exclusionary practice but not a one-off, episodic exclusion related to a particular judge’s actions.” The Court then held that the facts that the plaintiff had been called for jury duty twice between 2012 and 2017, and that the county “is not extremely populous[] and only a subset of the population is eligible for jury service,” were sufficient to show a fair likelihood that the plaintiff would again be called for jury service and confront the same accessibility hurdles to such service. “It is true that we cannot say with certainty when, precisely, Crawford will again be called, but imminence is an elastic concept that can accommodate that uncertainty.” (Internal quotation marks omitted).
    • Judge Ho concurred, to offer additional reasons that support standing. Judge Ho noted that, while the plaintiff had only been called for jury duty twice prior to filing this suit in 2017, he had also been called for jury duty twice more, in 2018 and 2019, and quoted Ian Fleming’s Goldfinger: “Once is happenstance. Twice is coincidence. Three times is enemy action.” Judge Ho would find that the post-suit jury summonses were relevant evidence as to the existence of a threat of repeated injury at the time he filed suit.

Unpublished

  • U.S. v. Jaime, 19-10877, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Stanbery, 19-11083, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Burch v. Freedom Mortgage Corp., 19-11197, appeal from N.D. Tex.
    • per curiam (Dennis, Southwick, Engelhardt), foreclosure
    • Dismissing as frivolous appeal from dismissal of action against mortgage company as time-barred.
  • U.S. v. Williams, 19-11240, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez-Saldivar, 19-11380, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Givens, 19-40893, appeal from E.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. McLean, 20-10265, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Graves, 20-10440, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aldridge, 20-10447, c/w 20-10448, 20-10449, 20-10454, 20-10456, appeal from N.D. Tex.
    • per curiam (Owen, Davis, Dennis), criminal, sentencing
    • Affirming imposition of five consecutive 14-month sentences for revocation of supervised release, for an aggregate 70-month sentence.
  • Gonzalez v. Duane, 20-10615, appeal from N.D. Tex.
    • Davis, J. (Owen, Davis, Dennis), § 1983, standing
    • Vacating district court’s dismissal on standing grounds of § 1983 survivor claims against state hospital employees for violating due process rights by wrongfully removing plaintiffs’ son from life support.
  • U.S. v. Hernandez, 20-11135, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Degallado, 20-20308, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Nunez-Arellano, 20-20354, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Powell, 20-30604, appeal from W.D. La.
    • per curiam (Davis, Stewart, Dennis), criminal, search and seizure, sentencing
    • Affirming conviction of possession of crack cocaine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime, and 168- and 60-month consecutive sentences; upholding denial of motion to suppress.
  • U.S. v. Rojas-Ramirez, 20-40065, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Berlanga, 20-40140, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kingfisher, 20-40191, appeal from E.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Suazo, 20-40415, appeal from E.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Alaniz-Garcia, 20-40791, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rodriguez-Valdez, 20-50565, appeal from W.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Robinson, 20-50586, appeal from W.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Roberts v. Yellen, 20-50849, appeal from W.D. Tex.
    • per curiam (King, Smith, Wilson), employment discrimination, lack of prosecution
    • Affirming dismissal of employment discrimination suit for lack of prosecution under F.R.C.P. 41(b).
  • U.S. v. Garcia-Hernandez, 21-40128, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.