September 1-6, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Rutila v. U.S. DOTD, 20-10730, appeal from N.D. Tex.
    • Smith, J. (Owen, Smith, Graves), Freedom of Information Act
    • Reversing district court’s jurisdictional dismissal of pro se FOIA suit against the FAA and DOTD, and remanding for further proceedings.
    • “The district court reasoned that, because Rutila ‘broadly challenged Defendants’ adequacy of search without alleging that Defendants improperly withheld any agency records,’ he failed to invoke the court’s FOIA jurisdiction. But that gloss on Rutila’s complaint does not give it the liberal construction it was due.”
  • HM International, LLC v. Twin City Fire Insurance Co., 20-20122, appeal from S.D. Tex.
    • Smith, J. (Owen, Smith, Graves), insurance
    • Vacating district court’s summary judgment in favor of insurer, and remanding for further proceedings.
    • The Court noted that the district court “interpreted the policy as not covering settlement payments made after limitations for the underlying negligent conduct had expired. But properly interpreted, the policy does cover such settlement payments.”
    • The policy at issue provides that “the Insurer shall pay Loss on behalf of an Insured Entity resulting from an Entity Claim first made against such Insured Entity during the Policy Period or Extended Reporting Period, if applicable, for a Wrongful Act by an Insured Entity.”
    • The Court held that the district court erred in interpreting the term “claim” to mean a cause of action, then bootstrapping in the requirement that the insured must be legally liable for the claimed amount, which foreclose a duty to indemnify for settlement amounts paid on an underlying claim that had been subject to an expired statute of limitations.
  • Veasey v. Abbott, 20-40428, appeal from S.D. Tex.
    • Ho, J. (King, Dennis, Ho), Ho, J., concurring; attorneys’ fees
    • As usual with a Judge Ho-penned opinion, we can rely on his introduction for a full explication of the background and the Court’s holding: “By a sharply divided vote and over multiple spirited dissents, our en banc court held unlawful a Texas statute requiring voters to present photo ID in order to vote. See Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc). We are of course bound by that decision. The only question in this appeal is whether Plaintiffs are ‘prevailing parties and thereby entitled to recover attorneys’ fees under 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e). It seems obvious that they are. Plaintiffs successfully challenged the Texas photo ID requirement before our en banc court, and used that victory to secure a court order permanently preventing its enforcement during the elections in 2016 and 2017. That court order substituted the photo ID requirement with a mere option—which of course defeats the whole purpose of a mandate. And those elections are now well in the past. The State of Texas obviously cannot go back in time and re-run the 2016 and 2017 elections under a photo ID requirement. Cf. Stringer v. Whitley, 942 F.3d 715, 726 (5th Cir. 2019) (Ho, J., concurring) (‘Plaintiffs have indeed endured an injury in the past. They were unable to exercise their right to vote in past election cycles. And it is a right they will never be able to recover.’). Not surprisingly, then, the State readily admits that any suggestion that Plaintiffs did not prevail in these proceedings would be ‘counterintuitive,’ to say the least. We agree and accordingly affirm.”
    • After analyzing why the plaintiffs were prevailing parties, he separately concurred in his own opinion in order to opine as to why he believes the plaintiffs should not have prevailed.
  • Ramirez v. Collier, 21-70004, appeal from S.D. Tex.
    • per curiam (Owen, Higginbotham, Dennis), Owen, C.J., concurring; Higginbotham, J., concurring; Dennis, J., dissenting; death penalty
    • Denying motion for stay of September 8, 2021, execution pending resolution of 1983 action alleging that the manner of execution will violate the Free Exercise clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).
    • Chief Judge Owen concurred in the one-paragraph per curiam denial of the motion. She agreed with Judge Dennis’s opinion that “Ramirez failed to establish a likelihood of success on the merits of his First Amendment claims,” but disagreed with Judge Dennis on the RLUIPA claims. “As Judge Higginbotham’s opinion explains, the administration of the drugs to cause demise is far from simple.” She additionally noted that the plaintiff failed to provide–and she could not find–any support in other jurisdictions for a right to have a spiritual advisor who is present in the execution chamber have physical contact with the person being put to death or to vocalize during the execution. “I do not doubt that Ramirez desires his spiritual adviser to touch him and to pray with and over him until Ramirez’s life is ended. But to raise this desire as a constitutional or statutory violation after previously disavowing the need for physical contact during the execution process means that the district court’s exercise of discretion was not an abuse of that discretion.”
    • Judge Higginbotham concurred. He noted that the plaintiff’s claim under the RLUIPA challenging the State’s prohibition on allowing his pastor to lay hands on him and pray over him during his execution subjected the State’s prohibition to strict scrutiny and required the least restrictive means to achieve the State’s purpose. He opined, “[T]he complexities attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. This is plainly a humane effort with constitutional footing with steps long side those of spiritual needs. But of course the state must also demonstrate that there is not an alternative means of serving its compelling interest. No hands means no hands.”
    • Judge Dennis dissented. He noted the Supreme Court’s series of writ grant-vacatur-remand orders in Gutierrez v. Saenz, 818 F. App’x 309, 314–15 (citing Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004), vacated, 141 S. Ct. 1260 (2021), and opined that Ramirez in this case should be found to have sufficiently stated a claim to prompt a fuller evidentiary hearing into the State’s claimed purposes and then a full prosecution of Ramirez’s 1983 claim under RLUIPA. “The State has not shown why its policy of prohibiting even a brief audible prayer and any physical touching is the least restrictive means of achieving its compelling interest in this specific case. Rather, the State has largely offered general concerns about security. I do not doubt that these concerns are legitimate and important. But that is not enough to satisfy RLUIPA’s ‘exceptionally demanding’ standard.”

Unpublished

  • Loya v. NFN Underwood, 20-10332, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), habeas corpus
    • Affirming dismissal of 2241 petition challenging military court convictions.
  • U.S. v. Leban, 20-11048, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Speed, 20-11162, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Llorens, 20-11163, appeal from N.D. Tex.
    • per curiam (Higinbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Roberson v. Blake, 20-20489, appeal from S.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s 1983 claim.
  • MTGLQ Investors, L.P. v. Alexander, 20-20528, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Wilson), foreclosure
    • Affirming district court’s summary judgment in favor of lender as to amounts owed by mortgagee.
  • Khoury v. Thota, 20-20578, appeal from S.D. Tex.
    • per curiam (Higginbotham, Willett, Duncan), Private Securities Litigation Reform Act
    • Affirming 12(b)(6) dismissal of plaintiff’s claims under the PSLRA.
  • Sansone v. Jazz Casino Co., 20-30640, appeal from E.D. La.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), Title VII, Americans with Disabilities Act, employment discrimination
    • Affirming summary judgment dismissal of Title VII retaliation claim and ADA discrimination claim, but reversing summary judgment dismissal of Title VII hostile work environment claim, and remanding for further proceedings.
  • Peters v. Davis, 20-40180, appeal from E.D. Tex.
    • per curiam (Davis, Jones, Elrod), prisoner suit
    • Affirming in part dismissal of appeal from denial of motion to enforce settlement and from dismissal of various claims, and dismissing in part for lack of jurisdiction.
  • U.S. v. Cisneros-Silva, 20-40185, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pruner, 20-40419, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lambright, 20-40740, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Duran-Pinon, 20-40823, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gandaria-Mancilla, 20-40842, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tu, 20-40862, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Rogers v. Hierholzer, 20-50105, appeal from W.D. Tex.
    • per curiam (Clement, Ho, Oldham), prisoner suit
    • Affirming dismissal of prisoner’s 1983 suit.
  • Marable v. Department of Commerce, 21-10218, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), employment discrimination, Title VII, Age Discrimination in Employment Act, Fair Labor Standards Act
    • Affirming summary judgment dismissal of former postal worker’s Title VII, ADEA, and FLSA claims.
  • Jackson v. UPM Service Corp., 21-10628, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), timeliness
    • Affirming dismissal of suit for failure to timely effect service under Fed. R. Civ. P. 4(m).
  • Suniverse, LLC v. Encore Credit Corp., 21-20072, appeal from S.D. Tex.
    • per curiam (Stewart, Ho, Engelhardt), foreclosure
    • Affirming summary judgment in favor of defendant “[b]ecause there are no genuine disputes of material fact as to Defendants’ rescission of acceleration.”
  • U.S. v. Guerrero, 21-20154, appeal from S.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Self, 21-50019, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, First Step Act
    • Affirming denial of motion for reduction of revocation sentence under the First Step Act.
  • U.S. v. Tzul, 21-60283, appeal from S.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming 8-month sentence on conviction for illegal reentry.