August 13, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Hernandez v. Garland, 19-60274, petition for review of BIA order
    • Jones, J. (Jones, Costa, Duncan), Costa, J., dissenting; immigration
    • Denying Salvadoran citizen’s petition for review of BIA order denying motion to reconsider prior order of removal or alternatively to reopen proceedings. BIA deemed the motion as a motion to reconsider, concluded that the equitable tolling period had elapsed prior to filing of the petition, and dismissed it.
    • Petitioner was a lawful permanent resident who was subsequently removed to El Salvador after a conviction that qualified as a “crime of violence.” On April 17, 2018, petition learned of the Supreme Court’s decision in Sessions v. Dimaya, “which he alleged made his removal unlawful.” 138 S. Ct. 1204 (2018). He filed his motion to reopen or reconsider the removal more than thirty days after that date.
    • The Court held that the BIA did not err in concluding that equitable tolling for purposes of petitioner’s motion to reconsider ended on the day he learned of the Dimaya opinion, rather than on the date that an immigration attorney told him that the Dimaya opinion may have rendered his removal unlawful. “Gonzalez Hernandez had enough information to know that a motion needed to be filed after discovering the Dimaya case. The affidavits support that conclusion, as they explain that the brothers thought Dimaya rendered Gonzalez Hernandez’s deportation unlawful immediately after discovering the case.”
    • The Court also held that the IJ and BIA did not err in construing the petitioner’s motion as a motion to reconsider rather than as a motion to reopen, because the motion did not present new evidence or argue new facts, but only a change in the law. “Because the statute specifies that a motion to reopen must state ‘new facts,’ and Gonzalez Hernandez’s motion arose from a change in law, the BIA’s decision not to construe Gonzalez Hernandez’s motion as a motion to reopen is not arbitrary and capricious, legally in error, or an abuse of discretion.”
    • Judge Costa dissented. He analyzed numerous decisions where the Court had allowed petitioners to bring motions to reopen based only on a change in the law. The petitioner’s motion here was timely as a motion to reopen, though it had been deemed as untimely as a motion to reconsider. “The need for consistency animates bedrock jurisprudential principles like stare decisis. When it comes to agency actions, consistency is a statutory command. Agency action is unlawful when it is arbitrary or capricious. 5 U.S.C. § 706(2)(A). What is more arbitrary than treating people in the same situation differently?”
  • Poincon v. Offshore Marine Contractors, Inc., 20-30765, appeal from E.D. La.
    • Elrod, J. (Wiener, Elrod, Higginson), admiralty jurisdiction, maritime law
    • Reversing summary judgment in favor of third-party defendant REC Marine Logistics, LLC, on defendant’s third-party claim for contribution arising from plaintiff seaman’s maintenance and cure claim, and remanding for further proceedings.
    • The Court first held that, under the totality of the circumstances evident in the parties’ pleadings, the maintenance and cure claim and the contribution claim both arose under maritime law on the court’s civil side, and therefore under federal question jurisdiction, as opposed to under admiralty jurisdiction; and that appellate jurisdiction was therefore appropriate under the district court’s Rule 54(b) certification.
    • The plaintiff’s claim arose from a neck injury she incurred while working aboard the defendant’s vessel in 2018; the defendant’s third-party contribution claim against REC arose from an earlier neck injury the plaintiff had incurred in 2015 in a collision with an REC vessel.
    • The Court summarized its reversal of the district court’s grant of summary judgment: “The district court granted summary judgment to REC by relying on its own new rule for contribution claims involving multiple accidents: ‘a first accident’s maintenance and cure obligation ends where a second accident’s begins.’ This new statement of law foreclosed Offshore Marine’s contribution claim against REC because the 2018 accident succeeded the 2015 accident caused by REC. The district court, however, erred by adopting a new rule of maritime law because our precedents, which analyze contribution claims under familiar tort principles of causation, ably address a sequence of accidents such as this. Under our governing precedent, Offshore Marine has established a genuine issue of a material fact, and therefore summary judgment is improper.”
    • While the Court recognized that there was a causation thicket to wade through, it held that this did not support a per se judgment as a matter of law: “There is no reason to doubt that a jury, guided by tort principles, can navigate even the choppiest causation question. The potential complexity of Offshore Marine’s case for causation simply provides no basis for taking that fact question away from the jury.”
  • Turner v. Cincinnati Insurance Co., 20-50548, appeal from W.D. Tex.
    • Southwick, J. (Higginbotham, Southwick, Engelhardt), insurance
    • Affirming district court’s summary judgment in favor of insurer on issue of liability coverage, while disagreeing with district court’s alternative ground for summary judgment that plaintiffs lacked standing to sue for coverage under insureds’ policies where the plaintiffs were proceeding on a theory of subrogation to insureds’ rights due to a default judgment against the insureds.
    • “A company with trade schools in several Texas counties has been the subject of multiple similar lawsuits brought by former students who have claimed the schools were a failure in various ways. The outcome of this appeal will turn on whether the suits that were filed before the insurance-coverage period are based on the same wrongful acts as the acts alleged in the current suit – which was filed during the policy period. If any of the prior suits are based on the same wrongful acts as the later one, then a policy limitation that denies coverage when the relevant claims are not first made against the insured during the policy period applies.”
    • The Court first held that the non-adversarial default judgment against the insureds was sufficient to confer standing on the plaintiffs in a direct action against the insurer under Texas law. After an extensive review of Texas law on the no-direct-action rule, the Court “determine[d] that the Texas Supreme Court would hold as follows. First, the ‘general rule’ applies, i.e., a third-party plaintiff is barred from suing the defendant’s insurer, when the third-party plaintiff has obtained neither a judgment nor agreement of any kind establishing the insured–defendant’s liability. Second, if the third-party plaintiffs obtain a judgment, then the court must look to the language of the no-action clause to determine whether it is the sort of judgment that satisfies the no-direct-action rule. For example, if the no-action clause contains an ‘actual trial’ requirement, then the judgment must be sufficiently adversarial under Hamel and Wright. Generally speaking, the court must determine whether the obtained judgment satisfies whatever requirement the relevant no-action clause contains.” Here, the Court held that the default judgments satisfied the no-action clause at issue.
    • The Court then held that the underlying lawsuit here fell outside the scope of coverage. Examining the underlying claims and the prior-adjudicated claims, the Court held that they constituted a single claim “first made” prior to the insurer’s policy period.

Unpublished

  • U.S. v. Bogomol, 18-11486, appeal from N.D. Tex.
    • per curiam (Dennis, Elrod, Costa), Dennis, J., dissenting; habeas corpus
    • Affirming denial of § 2255 petition, holding that district court did not abuse its discretion in failing to hold an evidentiary hearing and denying the petition regarding the petitioner’s ineffective assistance of counsel claims.
    • Judge Dennis dissented. “[T]he majority seems to conflate the district court’s ultimate merits determination with the antecedent question of whether Bogomol is entitled to an evidentiary hearing, and in doing so it inverts the proper standard for determining whether an evidentiary hearing should be held.”
  • U.S. v. Rodriguez, 20-20062, appeal from S.D. Tex.
    • per curiam (Jolly, Duncan, Oldham), criminal, search and seizure
    • Affirming conviction on firearms violation, upholding denial of motion to suppress.
  • Yang v. Nobilis Health Corp., 20-20538, appeal from S.D. Tex.
    • per curiam (Jolly, Duncan, Oldham), Private Securities Litigation Reform Act
    • Affirming 12(b)(6) dismissal of putative class action by stockholders against Nobilis Health Corporation, under the PSLRA.
  • U.S. v. Rubis, 20-20581, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Limited remand for district court to explain reasons for denial of motion for compassionate release.
  • U.S. v. Thomas, 20-30210, appeal from E.D. La.
    • per curiam (King, Costa, Ho), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • Smith v. City of Princeton, 20-40516, appeal from E.D. Tex.
    • per curiam (Stewart, Haynes, Ho), § 1983
    • Dismissing as frivolous appeal from dismissal of § 1983 action.
  • Solferini v. Corradi USA, Inc., 20-40645, appeal from E.D. Tex.
    • per curiam (Clement, Haynes, Wilson), breach of contract, attorneys’ fees
    • Affirming grant of summary judgment dismissing contract claim and awarding attorneys’ fees.
  • Ballentine v. Broxton, 20-50055, appeal from W.D. Tex.
    • per curiam (Jolly, Haynes, Oldham), prisoner suit
    • Vacating dismissal of plaintiff’s suit arising from his administrative segregation, and remanding with order to serve defendants and consider all parties’ arguments.
  • U.S. v. Reyes-Almendarez, 20-51037, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cogdell, 20-60247, appeal from S.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Bhuiyan v. Garland, 20-60275, petition for review of BIA hearing
    • per curiam (Southwick, Graves, Oldham), immigration
    • Denying Bangladeshi citizen’s petition for review of BIA order dismissing appeal from IJ’s decision finding that he waived his applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Thomas v. Stafflink, Inc., 21-20066, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), employment discrimination
    • Affirming 12(b)(6) and summary judgment dismissal of employment discrimination claims.
  • Charles v. Kijakazi, 21-30160, appeal from E.D. La.
    • per curiam (Southwick, Oldham, Wilson), social security
    • Affirming district court’s dismissal of plaintiff’s claims challenging denial of benefits.
  • U.S. v. Garcia, 21-40098, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming in part and vacating and remanding in part sentence on conviction of conspiracy to possess with intent to distribute a controlled substance.