August 16-17, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Lindsey v. Bio-Medical Applications of Louisiana, L.L.C., 20-30289, appeal from W.D. La.
    • Ho, J. (Ho, Oldham, Wilson), Family and Medical Leave Act
    • Affirming in part and reversing in part summary judgment dismissal of employee’s claims against former employer, reversing dismissal of FMLA retaliation claim and affirming dismissal of other claims for FMLA interference, violation of the Louisiana Whistleblower Statute, and intentional infliction of emotional distress.
    • The Court held that the district court correctly dismissed plaintiff’s FMLA interference claim, because the work that plaintiff did while on leave was at her own initiation and was not coerced by her employer.
    • The Court then held that the district court erred in holding that the employer’s stated reason for termination, regarding missed deadlines, was not pretextual. Holding that “there is a genuine issue of material fact as to whether both of BMA’s asserted reasons for Lindsey’s termination were in fact pretextual,” the Court determined that it need not resolve the question of “whether a mixed-motive causation standard is ever proper for FMLA retaliation claims.”
    • The Court also held that the district court properly dismissed plaintiff’s claim for violation of the Louisiana Whistleblower Statute because she did not allege that her employer actually violated state law with regard to patient medication, but only that a policy that might have violated state law had been discussed.
  • United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Anderson, 20-50501, appeal from W.D. Tex.
    • Duncan, J. (Jolly, Duncan, Oldham), First Amendment, Equal Protection
    • Affirming summary judgment dismissal of plaintiff’s claims that she was fired for engaging in union-related activities in violation of the First Amendment, the Equal Protection Clause, and Texas law.
    • The Court held that the district court did not err in dismissing the plaintiffs’ First Amendment claims on the basis of the Mt. Healthy defense–that, even if a causal relationship could be shown between a plaintiff’s union-related speech and the adverse employment action, there was no genuine dispute of fact that the adverse employment action would have taken place even in the absence of the union-related speech. The Court noted the overwhelming evidence that the defendant had valid reasons to terminate the plaintiff’s employment–as the plaintiff, a probation officer, repeatedly had committed egregious violations of case management rules and policy, exercising discretion that he did not have in ignoring court-imposed probation terms. The Court then held that the plaintiff did not raise a genuine dispute that those reasons were not pretextual.
    • As to the plaintiffs’ “class-of-one” Equal Protection Claim, the Court held that the union plaintiffs’ “challenge to how the facilities policy was applied is a ‘claim of differential treatment’ the Supreme Court has refused to recognize. Engquist, 553 U.S. at 608.”
    • The Court then held that the plaintiffs had forfeited their challenge to the dismissal of their Texas Labor Code claims for failure to adequately brief it on appeal, when their briefing on the issue consisted of one sentence with no citation to authority.
  • Ledford v. Keen, 20-50650, appeal from W.D. Tex.
    • Duncan, J. (Jolly, Duncan, Oldham), corporate veil piercing
    • Affirming dismissal of plaintiff’s claims against directors of rodeo operator based on corporate veil piercing, holding that under Texas law plaintiff could not pierce a corporate veil based solely on evidence of undercapitalization.
    • Making an Erie guess, the Court held that “we think the Texas Supreme Court would not conclude that undercapitalization alone justifies piercing the corporate veil. A significant datum is Ramirez v. Hariri, which rejected the argument that ‘undercapitalization, by itself and without reference to any other factors, is sufficient to justify piercing the corporate veil.’ 165 S.W.3d 912, 916 (Tex. App.—Dallas 2005, no pet.). While noting the landmark Castleberry opinion stated in a footnote that ‘[i]nadequate capitalization is another basis for disregarding the corporate fiction,’ ibid. (quoting Castleberry, 721 S.W.2d at 272 n.3), Ramirez reasoned the Texas Supreme Court could not have meant to convey that undercapitalization was itself a sufficient basis for veil piercing.”
    • The Court then found that the only evidence that the plaintiff had put forward on piercing the corporate veil was evidence of undercapitalization, and therefore affirmed the district court’s dismissal of the claims against the directors.

Unpublished

  • U.S. v. Delgado, 17-50919 c/w 20-50669, appeal from W.D. Tex.
    • per curiam (Jolly, Haynes, Oldham), criminal, sentencing
    • Affirming conviction and sentence on three counts of wire fraud, seven counts of money laundering, and nine counts of engaging in monetary transactions in property derived from specified unlawful activity.
  • Berrios-Bruno v. Garland, 18-60276, petition for review of BIA order
    • per curiam (Smith, Graves, Ho), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order affirming an Immigration Judge’s (“IJ”) denial of her asylum petition.
  • Ndon v. Garland, 19-60569, petition for review of BIA order
    • per curiam (Owen, Smith, Graves), immigration
    • Dismissing Cameroonian citizen’s petition for review of BIA order dismissing an appeal from an Immigration Judge’s decision denying asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Chang, 20-10100, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cuellar, 20-10182, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Jewell, 20-10814, appeal from N.D. Tex.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), criminal, sentencing
    • Affirming 275-month sentence on conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.
  • U.S. v. Boulyaphonh, 20-10824, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sufficiency of evidence
    • Affirming conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and of four counts of false statements on income tax returns.
  • Feather-Gorbey v. NFN NLN, 20-10863, appeal from N.D. Tex.
    • per curiam (King, Smith, Willett), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 suit.
  • U.S. v. Spears, 20-10963, appeal from N.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
    • Affirming 112-month sentence on conviction of conspiracy to possess firearms in furtherance of a drug-trafficking crime.
  • U.S. v. Martinez, 20-11147, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Asagba, 20-11154, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Comb, 20-20559, appeal from S.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • U.S. v. Morris, 20-20608, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Contreras, 20-20632, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Mandel v. White Nile Software, Inc., 20-40026 c/w 20-40340, appeal from E.D. Tex.
    • per curiam (Jones, Southwick, Engelhardt), bankruptcy
    • Affirming denial of discharge of debts and decision that certain claims had not been extinguished in a settlement agreement.
  • Wells Fargo, N.A. v. Lockwood, 20-40324, appeal from S.D. Tex.
    • Costa, J. (Stewart, Costa, Willett), breach of contract
    • Affirming district court’s holding that personal guarantor on companies’ $90 million in loans had been breached.
  • U.S. v. Franco-Hernandez, 20-40719, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ponce, 20-40795, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aragones, 20-50974, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Sanchez v. Garland, 20-60021, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order denying his motion to reopen.
  • U.S. v. Walker, 20-61160, appeal from S.D. Miss.
    • per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Perdue, 21-10043, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, First Step Act
    • Vacating denial of motion for sentence reduction under the First Step Act and remanding for further consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • U.S. v. Reyes, 21-10057, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Quintero, 21-10115, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gomez, 21-30040, appeal from M.D. La.
    • per curiam (King, Costa, Ho), criminal, search and seizure
    • Affirming conviction of drug and firearms offenses, holding that district court did not err in denying motion to suppress.
  • U.S. v. Ruiz-Leal, 21-40140, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Huerta-Velasquez, 21-50211, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Granting summary affirmance of 33-month sentence on conviction for illegal reentry.
  • Smith v. City of Beaumont, 21-60059, appeal from S.D. Miss.
    • per curiam (Clement, Ho, Oldham), qualified immunity
    • Affirming summary judgment dismissal of plaintiff’s claims against city and individual defendant.