August 3, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Quadvest, L.P. v. San Jacinto River Authority, 20-20447, appeal from S.D. Tex.
    • Higginson, J. (Wiener, Elrod, Higginson), antitrust law
    • Affirming denial of state-action immunity on behalf of water authority, against which plaintiff investor-owned utilities had brought claims under Section 1 of the Sherman Act.
    • Defendant water authority, the SJRA, is a political subdivision of the State of Texas, created by the legislature in 1937. After a 2006 study showed that population growth in the district was at a rate such that water demand would outstrip the recharge-rate of groundwater supplies, the SJRA entered into a MOU with the Lone Star Groundwater Conservation District to provide converting groundwater users and new users with surface water supply. Lone Star then adopted a District Regulatory Plan to regulate groundwater production in Montgomery County, pursuant to the MOU. The Plan called for Large Volume Groundwater Users (“LVGUs”) to meet certain reduction targets in the volume of groundwater they used. The SJRA (itself a LVGU) entered into a Joint Groundwater Reduction Plan (“Joint GRP”) with LVGUs, allowing some to “overconvert” to surface water wo others could engage in smaller reduction targets. Each LVGU entered into a GRP Contract with SJRA requiring the user to pay a volume-based fee for pumping groundwater. SJRA would use these fees to fund the construction of a surface water treatment and transmission system. Once the system is built, the LVGUs would be required to connect to the surface water system and purchase a certain volume of water from SJRA.
    • The Court first held that it had jurisdiction over the interlocutory appeal of a denial of state-action immunity under the collateral order doctrine. “As a public entity, SJRA is entitled to a presumption that it acts in the public interest absent a showing to the contrary. Although SJRA allegedly participates in the Montgomery County wholesale raw water market, Plaintiffs have not shown at this early stage that SJRA is influenced by or pursues outside private interests. We thus conclude that, for the purposes of our jurisdictional analysis, SJRA invokes state-action immunity as a state entity.” (Internal quotation marks and citation omitted).
    • As to the application of state-action immunity to the SJRA’s conduct, the Court held, “Supreme Court precedent recognizes three tiers of protection from federal antitrust lawsuits under the state-action immunity doctrine: (1) clear exercises of a state’s sovereign power are immune from federal antitrust scrutiny ipso facto (‘Parker immunity’), (2) acts of a ‘prototypical state agenc[y]’ or municipality are entitled to immunity if pursuant to a ‘clearly articulated and affirmatively expressed’ state policy to replace competition with regulation (‘Hallie scrutiny’), and (3) actions by private parties or state agencies controlled by participants in the market they regulate are protected if they meet the aforementioned ‘clear articulation’ requirement and are also subject to ‘active supervision’ by the state (‘Midcal scrutiny’).” (Citations omitted). The Court then noted that Midcal scrutiny involves a two-pronged inquiry: “(1) Does state law authorize the defendant to engage in the challenged conduct?; and (2) Did the state authorize the challenged conduct with an intent to displace competition with regulation or monopoly service?”
    • The Court held that the SJRA’s enabling statute’s authorization to participate in the water market was not an authorization to monopolize that market. “Here, SJRA’s hypothetical monopoly authority over the surface water market in Montgomery County would not foreseeably extend to the entire wholesale raw water market. We therefore conclude, with attention to the record before us, that the Texas Legislature did not authorize SJRA’s entry into and enforcement of the challenged GRP Contract provisions with the intent to displace competition in the market for wholesale raw water in Montgomery County.”

Unpublished

  • Balentine v. Lumpkin, 18-70035, appeal from N.D. Tex.
    • per curiam (Owen, Elrod, Duncan), habeas corpus, Rule 60(b)
    • Affirming denial of Rule 60(b) motion to reopen 2008 denial of habeas petition.
  • U.S. v. Soto, 19-40598, appeal from S.D. Tex.
    • per curiam (Stewart, Costa, Willett), criminal, supervised release
    • Affirming special condition of supervised release requiring him to participate in a mental health treatment program.
  • Simms v. Law Library Staff, 20-10784, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s suit against prison library staff.
  • Phillips v. Prator, 20-30110, appeal from W.D. La.
    • per curiam (Graves, Costa, Engelhardt), Americans with Disabilities Act
    • Affirming in part and reversing in part Rule 12(c) dismissal of claims arising from sheriff’s deputy’s tasing of severely autistic student.
  • Moore v. BP Exploration & Production, Inc., 20-30689, appeal from E.D. La.
    • per curiam (Clement, Haynes, Wilson), MDL
    • Affirming dismissal with prejudice of eight claimants’ claims in the BP Deepwater Horizon oil spill multi-district litigation.
  • U.S. v. Harkey, 20-30705, appeal from W.D. La.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming 70-month sentence on conviction of receipt or possession of an unregistered firearm.
  • U.S. v. Silva-Rosas, 20-40793, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Gonzalez-Penaloza v. Garland, 20-60241, petition for review of BIA order
    • per curiam (Wiener, Dennis, Duncan), Duncan, J., dissenting; immigration
    • Granting government’s motion to remand matter to the BIA, and dismissing as moot petitioner’s motion requesting that the Board of Immigration Appeals (“BIA”) administratively close his case so that he could file a Form I-601A application with United States Citizenship and Immigration Services.
    • Judge Duncan dissented. “Instead of remanding, I would deny the petition for review on the ground that the regulations foreclose the general use of administrative closure.”
  • Santos-Perez v. Garland, 20-60444, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying petition to review dismissal by the Board of Immigration Appeals (BIA) of petitioner’s appeal from the denial of the Immigration Judge (IJ) of her applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Ortiz-Odums, 21-20001, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Payton, 21-60187, appeal from S.D. Miss.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Affirming district court’s denial of motion for compassionate release.