June 29, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Tinney, 20-10849, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Oldham), criminal, sentencing
    • Affirming 18-month revocation sentence, plus an additional five years of supervised release, for recidivist sexual offender.
    • The Court held that the district court did not commit plain error in mistakenly conflating criminal history score with criminal history category during a colloquy with counsel, as the district court’s calculation shows that it did not carry this confusion over to the actual calculation and upward variation of the sentence. The Court also found that any error–which was only “an error in the colloquial sense [and] … not a cognizable error in the legal sense”–did not prejudice the defendant.
    • The Court also held that there was no plain error in the district court’s supervised release condition to “follow the instructions of the U.S. Probation Officer,” that this condition did not unlawfully delegate judicial authority. “Tinney challenges the district court’s delegation of authority to a probation officer, not to a therapist. And that distinction matters. Unlike the unfettered authority of a private therapist, a probation officer’s authority to ‘instruct’ a criminal supervisee is substantially limited by statute. … And unlike private therapists, probation officers are appointed by, and serve at the pleasure of, the district courts.”
  • McMillan v. Amazon.com, Inc., 20-20108, appeal from S.D. Tex.
    • Willett, J. (Wiener, Costa, Willett), products liability
    • Upon the Texas Supreme Court’s answer to a certified question, McMillan v. Amazon.com, Inc., 983 F.3d 194, 196 (5th Cir. 2020), certified question answered sub nom. Amazon.com, Inc. v. McMillan, No. 20-0979, 2021 WL 2605885 (Tex. June 25, 2021), reversing district court’s denial of summary judgment to Amazon on holding that Amazon.com is not a “seller” of products sold on its platform by third-party sellers because the third-party sellers do not relinquish title to their products.
  • Oliver v. Arnold, 20-20215, appeal from S.D. Tex.
    • Dennis, J. (Wiener, Dennis, Duncan), Duncan, J., dissenting; First Amendment, qualified immunity, appellate jurisdiction
    • Dismissing appeal by teacher-defendant of denial of qualified immunity on student-plaintiff’s claim of First Amendment violation through teacher’s compelling student to transcribe the Pledge of Allegiance and retaliating against her when she refused to do so; on basis that defendant’s appeal sought to have Court “resolve the very factual disputes that the district court found to be genuine and properly submitted for trial on the merits.”
    • The Court held, “we lack jurisdiction in an appeal of a denial of qualified immunity at the summary judgment stage to reexamine the evidence in the record to determine whether the factual disputes identified by the district court are genuine.”
    • The Court first held that the right of students to abstain from reciting the Pledge of Allegiance is a well-established right. “[T]he Supreme Court has held since the landmark 1943 decision in West Virginia State Board of Education v. Barnette that the First Amendment prohibits compelling students to salute or pledge allegiance to the American flag. ‘[T]he Barnette right to abstain from the pledge’ is well established enough that our court has previously described a case in which it was violated as a ‘rare exception’ to the trend ‘that educators are rarely denied immunity from liability arising out of First–Amendment disputes.’ Morgan v. Swanson (“Swanson II”), 755 F.3d 757, 760 (5th Cir. 2014) (citing Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir.2004)). It is also well established that a government official violates the First Amendment by retaliating against a person for exercising First Amendment rights—that is, by taking ‘adverse actions’ that are ‘substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct’ that cause the plaintiff ‘an injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity.'”
    • Then, quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000), the Court noted, “‘In deciding an interlocutory appeal of a denial of qualified immunity, we can review the materiality of any factual disputes, but not their genuineness.'” The Court then held that “Arnold’s legal arguments are inextricably intertwined with his challenges to the facts that the district court found to be disputed, over which we lack jurisdiction.”
    • Responding to the dissent, the Court noted that “the dissent fails to heed the limits on our jurisdiction in this context and to consider the facts in the light most favorable to Oliver [the plaintiff]. … [B]ecause the district court found that Arnold’s motives are genuinely disputed, we must presume here that Arnold was requiring his students to make precisely the sort of written oath of allegiance that the dissent acknowledges would be impermissible. We are not permitted to look beyond the district court’s findings of disputed facts to conclude that, based on the evidence in the record, Arnold was instead merely employing a ‘curious teaching method.'”
    • The Court also disagreed with the dissent’s suggestion that the majority’s opinion would open the gates to student lawsuits over any disagreement with a class assignment, because the clearly established right of Barnette was to be free from teachers requiring students to swear an allegiance. “Unless a teacher is requiring students to swear their fealty and devotion to Dr. Suess and his teachings, the assignments the dissent envisions are clearly not implicated by the present case.”
    • Judge Duncan dissented, opining that the assignment to write the Pledge of Allegiance was merely an “unorthodox” teaching method, and that there is no clearly established constitutional right to be free from unorthodox teaching methods. Judge Duncan also posited that the written assignment here was not sufficiently within the particular confines of Barnette, which arose from the compelling of students to stand and salute the flag while reciting the Pledge. And Judge Duncan suggested that any offense felt by a student at other assignments could lead to lawsuits under the majority’s opinion, signaling his umbrage at recent developments with regard to some of Dr. Seuss’s works steeped in racial stereotypes and to serious commentary regarding the misplaced emphasis on color-blindness in dealing with systemic racism.
  • Talamantes v. Metropolitan Life Insurance Co., 20-50953, appeal from W.D. Tex.
    • Davis, J. (Davis, Duncan, Oldham), ERISA
    • Reversing summary judgment in favor of MetLife on question of whether MetLife, which provided long-term disability insurance for policy year 2017, of Standard Insurance Co., the carrier for 2016, had the policy covering the underlying claim for long-term disability benefits.
    • The employee initially became disabled on November 9, 2016 due to trigeminal neuralgia, undergoing surgery for the condition. He was paid short-term disability benefits by his employer through December 22, 2016, then returned to work the next day. On January 12, 2017, he stopped working and again became disabled due to a relapse of the trigeminal neuralgia symptoms. His employer paid short-term disability payments through June 7, 2017, which, when combined with the earlier stint, came to 180 days of short-term benefits. He then made a claim for long-term disability benefits, which was denied by Standard and then by MetLife.
    • The Court noted that the Standard Insurance policy, while allowing for payment of benefits after a period of Temporary Recovery excluded such benefits “… after benefits become payable to you under any other disability insurance plan under which you become insured during your period of Temporary Recovery.” Accordingly, because the carrier of the disability insurance under the plaintiff’s employer’s plan changed during the period of “temporary recovery,” then the Court held that the plaintiff was not covered by another policy at the time his long-term disability commenced and was therefore not subject to the other-coverage exclusion in the MetLife policy.

Unpublished

  • U.S. v. Piedra, 19-20453, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Blanco, 19-40652, appeal from E.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Angel-Zamora, 19-40790, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Fleifel, 20-11195, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, compassionate release
    • Affirming district court’s denial of motion for reconsideration of denial of motion for compassionate release.
  • U.S. v. McNeal, 20-20055, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Taylor v. LeBlanc, 20-30264, appeal from M.D. La.
    • per curiam (Stewart, Graves, Higginson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of § 1983 suit by prisoner against director of prisons agency and warden, and barring plaintiff from future IFP-status suits on third strike.
  • U.S. v. Hernandez-Valenzuela, 20-40101, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Thomas, 20-50571, appeal from W.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Carmichael v. Lumpkin, 20-50620, appeal from W.D. Tex.
    • per curiam (Higginbotham, Smith, Oldham), habeas corpus
    • Denying certificate of appealability from district court’s dismissal of § 2253 as time-barred.
  • U.S. v. Duran-Robles, 20-51052, appeal from W.D. Tex.
    • per curiam (Stewart, Graves, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Yadav v. Frost Bank, 21-50012, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), employment
    • Affirming dismissal of bank employee’s claims for retaliatory discharge, defamation, RICO, and intentional infliction of emotional distress, and remand of assault claim back to state court.