October 19, 2021, opinions

Designated for publication

  • Talasek v. National Oilwell Varco, L.P., 21-20069, appeal from S.D. Tex.
    • Clement, J. (Owen, Clement, Duncan), insurance, ERISA
    • Affirming summary judgment in favor of defendant employer in its capacity as the ERISA administrator of the plaintiff’s deceased husband, dismissing the plaintiff’s estoppel claim for life insurance proceeds following her husband’s death.
    • The Court noted, “To survive summary judgment on her estoppel claim, Talasek needed to create a genuine dispute of material fact as to whether NOV made a material misrepresentation, on which she reasonably and detrimentally relied, under extraordinary circumstances.”
    • The Court held that the plaintiff established a genuine dispute as to the material misrepresentation element, because “[i]t is difficult to imagine a misrepresentation more likely to mislead a recipient” than the monthly deductions of premiums by the employer and the statements of coverage. However, the Court held that the district court’s contrary holding on this element was harmless error because the plaintiff could not create a genuine issue as to the remaining elements.
    • The Court held that the plaintiff’s husband had received unambiguous communications from the insurer that he had not satisfactorily provided the information needed to complete the Evidence of Insurability, which the Summary of Benefits clearly indicated was required. Accordingly, the Court held that there was no reasonable reliance on the misrepresentations. The Summary of Benefits “also made clear that [the employer’s] representations were not [the insurer’s], such that the communications from the insurer would trump any misrepresentations of the employer in determining reasonable reliance.
  • Terkel v. Centers for Disease Control and Prevention, 21-40137, appeal from E.D. Tex.
    • per curiam (Jones, Smith, Haynes), Haynes, J., concurring in dismissal of appeal only; Covid-19
    • Granting the government’s/appellants’ motion to dismiss the appeal, but not dismissing it as moot as requested by the government. The parties disagreed whether the dispute was truly moot, as the government maintained that it had the constitutional authority to issue the nationwide eviction moratorium, while the plaintiffs disputed this authority. Accordingly, Judges Jones and Smith for the Court dismissed the appeal, not as moot, but “on terms … fixed by the court” under FRAP 42(b), noting “our dismissal does not abrogate the district court’s judgment or opinion, both of which remain in full force….”
    • Judge Haynes did not join in the condition of keeping the district court judgment in force, but would have granted the dismissal without imposing conditions.

Unpublished

  • U.S. v. Garza-Gonzalez, 20-40115, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, supervised release, sentencing
    • Vacating in part sentence on conviction of possession with intent to distribute 100 kilograms or more of marijuana, for failure of district court to orally pronounce certain special conditions of supervised release at sentencing, and remanding for conforming written judgment to the oral pronouncement.
  • MTGLQ Investors, L.P. v. Walden, 20-50944, appeal from W.D. Tex.
    • per curiam (Jolly, Elrod, Graves), mootness, foreclosure
    • Denying motion for panel rehearing, but withdrawing opinion and substituting new opinion affirming summary judgment in favor of holder of mortgage on case arising from foreclosure. In substituting new opinion, Court noted that “the mid-litigation assignment of an interest neither renders a case or controversy moot nor requires the assignee to substitute as a party.”
  • U.S. v. Tapia-Rojas, 21-50062, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Granting summary affirmance of sentence upon conviction of illegal reentry, noting that defendant’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).
  • Assadi v. Osherow, 21-50293, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), bankruptcy
    • Affirming district court’s affirmance of bankruptcy court’s conversion of Chapter 11 bankruptcy petition to a Chapter 7 bankruptcy.
  • U.S. v. Argueta-Urbina, 21-50369, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of 57-month sentence upon conviction of illegal reentry, noting that defendant’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).
  • U.S.. v. Ellis, 21-60222, appeal from S.D. Miss.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Dismissing appeal as barred by the appeal waiver in the defendant’s guilty plea, regarding 90-month sentence on conviction of possession of a firearm as a felon.
  • U.S. v. Whitmore, 21-60569, appeal from S.D. Miss.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.