July 30, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Sanchez Oil & Gas Corp. v. Crescent Drilling & Production, Inc., 20-20304, appeal from S. D. Tex.
    • Jones, J. (Jones, Clement, Graves), Fair Labor Standards Act, indemnification
    • Reversing summary judgment in favor of defendant on plaintiff’s claim for indemnification for FLSA liability to subcontractor, finding existence of material fact as to whether underlying FLSA claimant, Langen, was an independent contractor or otherwise exempt from the FLSA, and as to whether defendant unreasonably withheld consent to settlement with Langen. Remanding for further proceedings.
    • Plaintiff Sanchez is a manager of oil and gas properties, and contracted through a Master Services Agreement with defendant Crescent to provide consulting services on the properties. The MSA required Crescent to comply with all applicable laws, and contained a detailed indemnification provision. Crescent, in turn, contracted Langen to work on Sanchez properties. Langen brought brought an FLSA claim against Sanchez for unpaid overtime and other damages. Sanchez made a demand on Crescent under the MSA’s indemnity provision, and Crescent refused. Sanchez brought this separate third-party demand against Crescent under the MSA indemnity clause. Sanchez and Langen entered into a confidential settlement. The district court granted summary judgment for Crescent and denied summary judgment for Sanchez. The district court held that Sanchez failed to adequately plead its claim under FRCP 8, and that, even if it had properly pled them, Sanchez failed to show that Crescent had violated the FLSA. Under the MSA’s fee-shifting provision, the district court awarded more than $400,000 in fees and costs to Crescent.
    • The Court held that the district court interpreted Sanchez’s complaint too narrowly under FRCP 8, but held that the district court was nevertheless correct in its alternative analysis that the FLSA-specific clause of the MSA governed instead of the broader indemnity provisions.
    • The Court held that Crescent, rather than Sanchez, was liable for ensuring the FLSA was complied with. “In clarion terms, the MSA places the duty of paying Langen upon Crescent. The parties’ agreement structures their relationship as follows: Sanchez places a ‘Work Order’ and Crescent completes the work and invoices Sanchez at the agreed rates; Crescent pays for all labor and expenses necessary to handle that work. MSA Sections 3.1, 4, 5. The MSA plainly requires that the wages paid for the ‘Work’ must comport with the FLSA, and Crescent is responsible to ensure this happens.”
    • The Court then held that the district court erred in finding that Sanchez had not produced any evidence that Crescent had violated the FLSA. The Court held that there was a robust dispute on the fact-intensive issue of Langen’s status or not as an independent contractor, which the district court had failed to recognize.
    • The Court then held that the covenant for Crescent to not unreasonably withhold consent to a settlement was not a condition precedent to Sanchez’s ability to settle the underlying claim with Langen.
  • Topletz v. Skinner, 20-40136, appeal from E.D. Tex.
    • Dennis, J. (Dennis, Higginson, Willett), habeas corpus
    • Petitioner was sentenced to detention for contempt of court for the failure to produce trust documents for a family trust of which he was a beneficiary, as part of judgment enforcement proceedings against him. Because he claims he is unable to get the trust documents because his brother, the trustee, took the position that he was not entitled to get copies of the documents but only to inspect them, petitioner brought a habeas petition arguing that he was denied of his due process rights by being detained for not producing documents that he was unable to obtain. The district court denied his petition, and the Court affirms.
    • The Court first held that sec. 2254 and AEDPA apply to a state contemnor’s federal habeas petition.
    • The Court then held, under the AEDPA standard, that petitioner failed to show that the state courts’ holding that he could purge the contempt by producing documents that were controlled by a third party (the trustee) was a violation of clearly established federal law. “[T]he Federal law on the issue that is clearly established . . . by the Supreme Court of the United States is at most that a civil contempt order violates due process if and when it becomes actually impossible for a contemnor to purge the contempt. There is no clearly established Supreme Court precedent that a civil contempt order’s release condition may never require the cooperation of a third party for its fulfillment. Unless the third party’s refusal to cooperate makes the contemnor’s complying with the order actually impossible, Shillitani has nothing to say about the matter.”
    • Moreover, the Court noted the state courts’ finding that petitioner was not actually unable to obtain the trust documents, but that the trustee/brother’s refusal to provide them was part of a scheme between the petitioner and his brother.
  • Havercamp v. Linthicum, 20-40337 c/w 20-40683, appeals from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), Dennis, J., specially concurring; prisoner suit, sovereign immunity
    • Vacating district court’s denial of sovereign immunity to the state on prisoner plaintiff’s equal protection claims arising from state’s denial of sex-reassignment surgery, female commissary items, and a long-hair pass. Remanding for further proceedings.
    • The Court held that the state officials named as defendants, members of a healthcare committee overseeing Texas prison health care provision and policy, did not qualify for Ex parte Young exception to sovereign immunity because “Haverkamp’s operative complaint fails to plausibly allege that Defendants are sufficiently connected to enforcing any policies or decisions Haverkamp challenges as unconstitutional. * * * As this court has explained, a governor’s promulgation of an executive order alone is not sufficient to make him suable under Ex parte Young because the ‘statutory authority … to issue, amend, or rescind an Executive order is not the power to enforce.’ Mi Familia Vota v. Abbott, 977 F.3d 461, 477 (5th Cir. 2020) (internal quotation marks omitted). Likewise, the Committee’s authority to promulgate Policy G-51.11, standing alone, is not the power to enforce that policy.”
    • Judge Dennis specially concurred in the per curiam opinion. He wrote to encourage the district court to grant the plaintiff leave to amend his complaint a second time to add the appropriate defendants, and to encourage the district court to reconsider its previous orders denying plaintiff the appointment of counsel.
  • U.S. v. Flowers, 20-60056, appeal from S.D. Miss.
    • Jones, J. (Jones, Smith, Elrod), Elrod, J., dissenting in part; criminal, search and seizure
    • Affirming defendant’s conviction on a federal gun violation, upholding district court’s denial of a motion to suppress, finding that the detaining officers had the requisite reasonable suspicion to conduct a Terry stop.
    • The Court held that relevant factors supporting reasonable suspicion were (1) that the investigatory stop occurred in a high-crime area, (2) that the detaining officer had ten years experience and had degrees in justice administration and criminology, (3) that the detaining officer observed two men in a car parked as far from a convenience store entrance as possible and that they were not exiting the vehicle or patronizing the store. “The reasonable, articulable facts taken in context here supported an investigation at least to the point of the officer’s dispelling the ambiguity in the situation.”
    • Taking issue with the dissent, Judge Jones wrote, “It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stanton’s encounter with Flowers was entirely benign until Stanton smelled marijuana. He conducted no physical frisk of Flowers’s person but simply approached the Cadillac to ask some questions. If this course of conduct is constitutionally impermissible, then it is difficult to see how any active policing can take place in communities endangered and impoverished by high crime rates.”
    • Judge Elrod dissented in part, on the basis of the evolution of what constitutes “reasonable” suspicion. “In Terry v. Ohio, the Supreme Court held that reasonable suspicion supported a stop where an officer, who suspected two men of casing a store, observed them walking back and forth in front of the store for ten to twelve minutes. 392 U.S. 1, 6 (1968). Here, the majority opinion finds reasonable suspicion after a police officer in Jackson, Mississippi observed two men sitting in a parked vehicle outside a convenience store for ten to fifteen seconds. How far we have come.” Judge Elrod characterized the totality of the circumstances as lacking in any reasonableness of suspicion: “Looking at the totality of the circumstances, there was no reasonable suspicion in this case, and the stop therefore violated Flowers’s Fourth Amendment rights. Two men were sitting in a parked car outside an open convenience store during the early evening for a mere ten seconds. That is not suspicious behavior, nor does it transform into suspicious behavior because the convenience store was located in a high-crime area. While the majority opinion notes that ‘[c]onvenience stores are a type of establishment known to be frequent targets for theft, robbery, and burglary,” Maj. Op. at 9, a convenience store is also a place to get soft drinks, batteries, gum, and last-minute Valentine’s Day gifts. Parking in one of only a few available parking spots in front of a convenience store at an unextraordinary time of evening—8:30 p.m.—is something that any law-abiding citizen might do in order to patronize the store. As for the ‘dawdling’ of approximately ten to seconds, the men could have been finishing a conversation, responding to text messages, watching with curiosity as a six-car police caravan passed, or engaging in other reasonable behavior that explains the delay. The facts in this case simply do not support an officer’s reasonable suspicion.”

Unpublished

  • Bryan v. White, 19-11309, appeal from N.D. Tex.
    • per curiam (Jolly, Stewart, Oldham), qui tam, False Claims Act
    • Affirming district court’s denial of attorneys’ fees to second-filed qui tam action alleging kickback scheme in violation of the False Claims Act under the first-to-file rule.
  • Pedro v. Garland, 19-60903, petition for review of BIA order
    • per curiam (Smith, Haynes, Wilson), immigration
    • Dismissing in part and denying in part Cuban citizen’s petition for review of adverse credibility determination and of BIA’s dismissal of appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.
  • U.S. v. Ybarra, 20-10520, appeal from N.D. Tex.
    • per curiam (Jolly, Duncan, Oldham), criminal, Armed Career Criminal Act, sentencing
    • Vacating sentence under the ACCA sentencing enhancement on finding that prior robbery conviction was not a “violent felony,” and remanding for resentencing.
  • RLB Contracting, Inc. v. Genesis Energy, L.P., 20-20540, appeal from S.D. Tex.
    • per curiam (Haynes, Graves, Willett), Rule 17
    • Reversing district court’s granting of late-filed motion to dismiss claim of claimant in limitation of liability proceeding under Rule 17(a) and denial of claimant’s motion to amend to add the correct parties, and remanding for further proceedings.
  • U.S. v. Jackson, 20-40046, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Montelongo, 20-40144, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aguilar-Gonzalez, 20-40840, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sutton, 20-50597, appeal from W.D. Tex.
    • per curiam (Clement, Haynes, Wilson), criminal, sentencing
    • Reversing 168-month sentence on conviction of conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine and possession with intent to distribute five grams or more of actual methamphetamine, and remanding for resentencing.
  • U.S. v. Limon-Tejeda, 21-50008, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.