August 5, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Parish of Plaquemines v. Chevron USA, Inc., 19-30492, appeal from E.D. La.; c/w Parish of Cameron v. BP America Production Co., 19-30829, appeal from W.D. La.
    • Ho, J. (Ho, Engelhardt, Oldham), removal
    • Granting panel rehearing, withdrawing original panel opinion, denying en banc rehearing; affirming in part, reversing in part, and remanding for further proceedings. One district court in these consolidated appeals had held that claims implicating federal officer removal had been evident from the original filing, and not been first apparent in a later-filed expert report, such that the expert report was not an “other paper” reopening the window for removal, such that a second removal of the cases on federal-officer grounds was untimely; the other district court had held that the second removal was timely. Both district courts also held that there was no Grable federal arising-under jurisdiction, and that there was no federal officer jurisdiction. The appeal panel had originally affirmed the district court ruling that the second removal was untimely, and did not rule on the merits of the removal grounds; but the mandate was held and further en banc briefing and hearing ordered. After supplemental briefing, however, the panel granted panel rehearing and pretermitted en banc rehearing.
    • The Court first held that the second removal was timely. The Court found that, while the original petitions had generally alleged that some of the defendants’ pre-1978 conduct may have violated some state regulations, the specific conduct that was violative of pre-1978 regulations was not delineated as potentially including operations that took place under the auspices of World War II-era federal regulation of oil and gas activities until the expert report that the defendants argued reopened the window for removal as an “other paper.” “[T]o establish a causal nexus, the companies needed to connect the dots between their alleged wrongdoing and a federal wartime directive. Even if the companies might have been able to point to a federal wartime directive for many of the potential violations of the hundreds of provisions contained in the Louisiana orders cited in the petitions, the fact that the petitions did not reveal to the companies what, specifically, they did wrong means that the companies were still left guessing as to how to connect the dots.” (Internal citation omitted). The Court also noted that the arguable basis for federal officer removal was not “unequivocally clear and certain” until the expert reports were issued.
    • The Court then held that it would not reach the merits of federal officer jurisdiction, because both district courts decided that question prior to the release of the 5th Circuit’s en banc decision regarding the appropriate standard in Latiolais, 951 F.3d 286. The Court remanded for the district courts to determine the removal question in light of Latiolais. (Never mind that both district courts acknowledged the pending nature of Latiolais and expressly ruled that there would be no federal officer jurisdiction under either standard that was being advocated in that case).
    • Finally, the Court agreed with the district courts that there was no arising-under federal question jurisdiction under the Grable analysis, which had been the subject of the defendants’ first round of removals.
  • Hughes v. Vannoy, 19-30979, appeal from M.D. La.
    • Higginbotham, J. (Higginbotham, Stewart, Wilson), habeas corpus, ineffective assistance of counsel
    • Affirming district court’s grant of habeas petition on finding that trial counsel was constitutionally ineffective in failing to interview the one eyewitness whose testimony supported the second-degree murder charge. “AEDPA sets a high bar but not an insurmountable one. The Louisiana courts’ denial of relief to Hughes is one of the rare ‘extreme malfunctions in the state criminal justice system’ that we are obliged to correct.”
  • Dockery v. Cain, 20-60086, appeal from S.D. Miss.
    • Duncan, J. (Jones, Costa, Duncan), prisoner suit
    • Affirming district court’s finding that changes in prison conditions since the filing of the suit rendered the prison conditions such that no constitutional violations existed any longer and injunctive relief was unnecessary.
    • The district court had “noted that conditions at EMCF had changed dramatically since the lawsuit’s beginning. While the court did not ‘speculate’ what the outcome might have been had ‘the conditions that existed at the prison when the lawsuit was filed continued to exist at the time of trial or thereafter,’ it found the current conditions constitutional. Notably, the original lead defendant MDOC Commissioner Christopher Epps, had since been convicted on corruption charges and sent to federal prison. Dr. Carl Reddix, EMCF’s contractor for health services at the time of the complaint, was likewise convicted of bribery and imprisoned. The court found ‘the bribery and kickbacks … likely affected the quality of care that was being provided to prisoners as well as other conditions at that facility.”

Unpublished

  • Alexander v. Anheuser-Busch, LLC, 19-30993, appeal from W.D. La.
    • per curiam (Jones, Southwick, Engelhardt), personal jurisdiction
    • Affirming district court’s holding that it lacked personal jurisdiction over the defendants.
  • Zuniga-Sanchez v. Garland, 19-60810, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying Mexican citizen’s petition for review of BIA order upholding IJ’s determination regarding the possibility of future persecution.
  • Blum v. Wilson, 20-10273, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Ho), habeas corpus
    • Affirming denial of § 2241 petition.
  • U.S. v. Barajas, 20-10582, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Willett), criminal, guilty plea
    • Affirming conviction and sentence of defendant who pled guilty to participating in a widespread conspiracy involving the possession and distribution of methamphetamine, rejecting challenge to district court’s failure to sua sponte order a competency hearing before accepting guilty plea.
  • U.S. v. Madison, 20-11111, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Fernandez, 20-11139, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kayode, 20-20569, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Engelhardt), criminal, mootness
    • Dismissing as moot the appeal of the district court’s order to unseal defendant’s PSR for the limited purpose of use in his removal proceedings.
  • Chow v. U.S., 20-30503, appeal from E.D. Tex.
    • per curiam (King, Higginson, Willett), § 1983
    • Dismissing as frivolous appeal from dismissal of wide-ranging civil conspiracy claim.
  • U.S. v. Gonzalez, 20-40776, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Engelhardt), criminal, sentencing
    • Affirming application of an enhancement for “reckless endangerment during flight.”
  • Spears v. McCraw, 20-50406, appeal from W.D. Tex.
    • per curiam (Higginbotham, Southwick, Engelhardt), § 1983
    • Affirming dismissal of § 1983 claims.
  • Jebril v. Garland, 20-60295, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Dismissing in part and denying in part Jordanian citizen’s petition for review of BIA order dismissing his appeal from the denial of cancellation of removal.
  • U.S. v. Sequera-Hernandez, 21-40205, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Anderson, 21-50103, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.