September 14, 2021 opinions

Designated for publication

  • Spikes v. McVea, 19-30019, appeal from E.D. La.
    • per curiam (Higginbotham, Smith, Dennis), qualified immunity
    • Treating petition for en banc rehearing as a petition for panel rehearing, granting panel rehearing, vacating the qualified immunity judgment of the district court, and remanding for further proceedings. “In this suit under the Eighth Amendment against Dr. McVea and prison nurses working at his direction, the recent death of the doctor makes it all the more important that the inquiry of qualified immunity not rest on the collective action of the medical staff, but on the role of each participant.”
  • Forby v. One Technologies, L.P., 20-10088, appeal from N.D. Tex.
    • Duncan, J. (Jones, Costa, Duncan), arbitration
    • After vacating the district court’s order compelling arbitration of state-law claims on a holding that the defendant had waived its arbitration rights by proceeding with a Rule 12(b)(6) motion in the litigation, the amendment of the complaint on remand to add federal-law claims, and the district court’s denial of a motion to compel arbitration of the new federal-law claims, the Court reversed that judgment and remanding to the district court to compel arbitration of the federal-law claims.
    • The Court held that waiver of arbitration must be determined on a claim-by-claim basis, and that the defendant’s waiver of arbitration of the state-law claims did not act as a waiver of the later-added federal-law claims.
  • Ray v. Commissioner of Internal Revenue, 20-60004, appeal from U.S. Tax Ct.
    • Higginson, J. (Dennis, Higginson, Willett), Dennis, J., dissenting in part; tax law
    • Affirming in part and reversing in part Tax Court’s upholding in part the IRS’s deficiency determination and imposition of an accuracy-related penalty with regard to the taxpayer’s claim of a deduction for certain legal expenses on his 2014 federal income tax return.
    • The Court held that the taxpayer had waived his argument that the IRS was collaterally estopped from finding that certain legal fees incurred in the attempt to recoup trading losses were non-deductible by the IRS’s prior entry into a stipulated judgment that the underlying losses were themselves deductible, when the taxpayer failed to adequately raise those issues before the Tax Court.
    • The Court then held that the tax court did not clearly err in holding that the trading losses had not been incurred in engagement in a trade or business. “A mere profit motive does not establish engagement in a trade or business, and the management of one’s own investments is not a trade or business.” The Court also held that a clause in the taxpayer’s agreement with his ex-wife that either could advertise the results of the commodities trading program she would employ did not convert the resulting losses into a trade or business; “[t]he existence of an intent to commercially exploit the trading program does not show that Ray engaged in extensive activity over a substantial period of time with respect to the purported trading business.”
    • The Court also held that the Tax Court did not clearly err in finding that legal fees incurred to recover debts owed by the taxpayer’s ex-wife related to property transactions they had entered into and credit car charges she had incurred related to properties and charged for personal use and not to investment or business purposes.
    • The Court did hold that all of the accuracy-related penalty upheld by the Tax Court was not proper. It held that the taxpayer was entitled to a reasonable and good faith basis that his legal fees incurred in seeking to recover his trading losses were deductible, due to the prior stipulated judgment.
    • Judge Dennis dissented in part, and would have held that the Tax Court did not clearly err in its holding regarding the accuracy-related penalty.


  • U.S. v. Duke, 20-30489, appeal from W.D. La.
    • per curiam (Jolly, Willett, Engelhardt), criminal, Miranda rights, sentencing
    • Affirming conviction and concurrent 288-month sentences for two counts of possession with intent to distribute fentanyl and a single count of possession with intent to distribute heroin, upholding denial of motion to suppress his statements and the efficacy of his Miranda warning.
  • Rivera-Sorto v. Garland, 20-60209, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Denying petition by Salvadoran citizen for review of BIA order dismissing her appeal from the Immigration Judge’s(IJ) denying: asylum; withholding of removal; and relief under the Convention Against Torture.
  • Castillo-Martinez v. Garland, 20-60276, petition for review of BIA order
    • per curiam (King, Higginson, Wilson), immigration
    • Denying Honduran citizens’ petition for review of BIA order dismissing their appeals of Immigration Judge’s denial of Petitioners’ application for asylum and withholding of removal.
  • U.S. v. Patrick, 21-60274, appeal from N.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming revocation sentence.