August 2, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Kaswatuka v. U.S. Department of Homeland Security, 20-10632, appeal from N.D. Tex.
    • Stewart, J. (Stewart, Costa, Willett), employment discrimination, Title VII, Americans with Disabilities Act
    • Affirming 12(b)(6) dismissal of plaintiff’s employment discrimination claims against the TSA.
    • The Court first held that the plaintiff had waived any arguments other than those directly related to the grounds for dismissal stated in the district court’s order, because the plaintiff had failed to oppose the motion to dismiss and therefore had failed to raise any arguments to the district court.
    • The Court held that the Aviation and Transportation Security Act precluded plaintiff’s claims under the ADA or the Rehabilitation Act.
    • The Court also held that the plaintiff’s Title VII claims failed as a matter of law because she brought them against the agency itself rather than against head of the department.
  • Glen v. American Airlines, Inc., 20-10903, appeal from N.D. Tex.
    • Ho, J. (King, Dennis, Ho), Helms-Burton Act, standing
    • Vacating district court’s dismissal for lack of standing, and dismissing claim instead for failure to state a claim under the Helms-Burton Act for failure to meet the statute’s timeliness requirements.
    • The Helms-Burton Act provides a cause of action for damages arising from trafficking in property confiscated by the Cuban government, but only for confiscations that happened after March 12, 1996, or where the right to the claim accrued prior to March 12, 1996.
    • The Court held that the plaintiff suffered a concrete injury for purposes of standing, when American Airlines (through its travel website) accepted commissions for bookings at beach resorts that had been built on beachfront property that had been confiscated from plaintiff’s grandfather by the Cuban government. The Court held that American’s argument that plaintiff did not have a property interest in the property because there was nothing for him to inherit once the property had been confiscated goes to the merits and not to jurisdiction.
    • The Court further held that the plaintiff had stated an injury that was fairly traceable to American’s actions because he alleged “American was unjustly enriched because it did business with the entities that now occupy the properties that were wrongly taken from him.”
    • However, the Court held that plaintiff did not state a claim under the Act because he did not have a claim that he inherited the property until after his aunt died in 1999, and therefore had not acquired the claim until after the time period stated in the Act.
  • Lexon Insurance Co. v. Federal Deposit Insurance Corp., 20-30173, appeal from E.D. La.
    • Elrod, J. (Elrod, Duncan, Wilson), receivership, Federal Tort Claims Act
    • Affirming dismissal of plaintiff’s claims against FDIC in its receiver capacity, and dismissal of FTCA claim against FDIC in its corporate capacity.
    • The Court held that the district court erred in not providing the parties appropriate notice that it was converting the 12(b)(6) motion to a summary judgment motion, but that the error was harmless. The Court also held that the plaintiff had failed to provide evidence to a show a genuine dispute as to any material facts, because it had ignored some evidence and cherry-picked other evidence to form its argument.
    • The Court also held that the letters of credit that the plaintiff had held with the bank that was under the FDIC’s receivership were “contracts” that could be repudiated by FDIC under 12 U.S.C. § 1821(e). The Court then held that FDIC had provided reasonable notice of the repudiation of the letters of credit because FDIC and the plaintiff had been in near-constant negotiations throughout the 153 days between the FDIC’s initiation of its receivership and the repudiation of the letters of credit; and that FDIC had informed plaintiff multiple times during that delay that it may repudiate the letters of credit.
    • The Court also held that there was no basis in the law for establishment of a state tort duty against a federal agency, such that the district court did not err in dismissing the FTCA claims against the FDIC in its corporate capacity.

Unpublished

  • Johnson v. Collier, 19-20721, appeal from S.D. Tex.
    • per curiam (Stewart, Costa, Willett), prisoner suit
    • Affirming dismissal of prisoner’s suit arising from transfer to different prison unit.
  • U.S. v. Orona, 20-10789, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Vargas, 20-11245, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Tabor v. Coleman, 20-30627, appeal from W.D. La.
    • per curiam (Jolly, Willett, Engelhardt), prisoner suit
    • Affirming dismissal of prisoner’s claims against prison officials.
  • U.S. v. Rubin, 20-30695, appeal from W.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Remanding for district court to state whether it would have imposed same-length sentence if it had known that the federal bureau of prisons could not provide credit for time served in state prison.
  • U.S. v. Rodriguez, 20-40521, appeal from E.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sufficiency of evidence
    • Affirming conviction of attempted enticement of a 14-year-old girl to engage in sexual activity.
  • U.S. v. Strother, 20-40710, appeal from E.D. Tex.
    • per curiam (King, Costa, Ho), criminal, First Step Act
    • Affirming district court’s denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Tanaka, 20-50171, appeal from W.D. Tex.
    • per curiam (Stewart, Costa, Willett), criminal, sentencing
    • Affirming 480-month sentence on conviction for production and possession of child pornography.
  • Smith v. Green, 20-50725, appeal from W.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s suit.
  • U.S. v. Ybarra, 20-50804, appeal from W.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), criminal, compassionate release
    • Dismissing appeal of denial of motion for compassionate release.
  • Ngoh v. Garland, 20-60585, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Dismissing in part and denying in part Cameroonian citizen’s petition to review BIA order dismissing his appeal of the Immigration Judge’s (IJ) denying: his applications for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Temaj-Augustin v. Garland, 20-60983, petition for review of BIA order
    • per curiam (Davis, Stewart, Dennis), immigration
    • Denying Guatemalan citizens’ petition for review of denial of their application for asylum and for protection under the CAT.
  • U.S. v. Chicol-Najarro, 21-20071, appeal from S.D. Tex.
    • per curiam (Dennis, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Regalado, 21-50112, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal, compassionate release
    • Affirming denial of motion for compassionate release.