October 21-25, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • Ghedi v. Mayorkas, 20-10995, appeal from N.D. Tex.
    • Willett, J. (Stewart, Costa, Willett), Fourth Amendment, Administrative Procedures Act
    • Affirming dismissal of plaintiff’s Fourth Amendment and APA claims against various federal officials in their official capacities arising from being subjected to air travel restrictions and inconveniences.
    • While the Court disagreed with the district court that the plaintiff failed to allege a plausible injury in fact, it affirmed the dismissal of his Fourth Amendment claims on the basis that he failed to plausibly allege that his injury is fairly traceable to the named defendants. “[W]e cannot reasonably infer that the heads of DHS, TSA, or CBP will immediately cause or ever have caused the kind of Fourth Amendment violation Ghedi alleges. At most Ghedi’s allegations give rise to a reasonable inference that ‘the independent action[s] of some third party not before the court,’ individual TSA or CBP agents, will cause him future injury. Such a connection cannot support traceability for standing.”
    • The Court held that the plaintiff failed to allege a plausible Fifth Amendment claim, because “Ghedi has no right to hassle-free travel”; he failed to provide more than threadbare allegations that his practice of his chosen profession was impinged by the increased travel screening; and that Ghedi failed to plausibly allege a stigma on his reputation and an infringement on some other interest.
    • The Court affirmed the dismissal of his APA claims, because the allegations of the plaintiff’s placement on the selectee list in retaliation for refusing to be an informant for the FBI did not rise above speculation.
  • U.S. v. Beard, 20-20116, appeal from N.D. Tex.
    • Davis, J. (Davis, Elrod, Oldham), criminal, search and seizure
    • Affirming conviction of defendant on drug charges, upholding district court’s denial of defendant’s motion to suppress evidence of drugs in a package that he had mailed from Houston to Hammond, Louisiana. “Beard does not dispute that reasonable suspicion existed to detain the package when it arrived in Hammond. He argues that his Fourth Amendment rights were violated, and an unlawful seizure occurred, when the package was rerouted back to Houston, which took five days, before law enforcement took further investigative steps to confirm their suspicion.”
    • The Court held that the decision to reroute the package to Houston was not unreasonable or an indication of a lack of investigatory diligence. The Court credited the investigator’s testimony that he believed that the time to get a warrant in Hammond and for a warrant in Houston would have been about the same, and that the time in transit was beyond his control.
  • Hotze v. Hudspeth, 20-20574, appeal from S.D. Tex.
    • Haynes, J. (Davis, Haynes, Oldham), Oldham, J., dissenting; voting law, mootness
    • Affirming the dismissal of plaintiffs’ claims for injunctive relief regarding Harris County’s administration of drive-thru voting in the November 2020 election for want of jurisdiction, and vacating the district court’s “advisory discussion of the legality of drive-thru voting without offering any opinion as to the merits of that reasoning.”
    • Judge Oldham dissented, opining that “[t]he majority confuses standing and mootness.” Judge Oldham wrote that candidates, as opposed to voters, had particularized grievances to support standing at the time of the filing of the suit; “[i]f one of the candidate plaintiffs had standing at the time the suit was filed, the candidate has standing now.” And because the County here had not refused to disclaim the use of drive-thru voting in future elections, Judge Oldham found that the “promise is certainly enough to prevent the case from becoming moot.” On the merits, Judge Oldham would have held that Harris County’s administration of drive-through voting rules violated Texas law.
  • Harm v. Lake-Harm, 20-30488, appeal from E.D. La.
    • Wiener, J. (Wiener, Dennis, Duncan), international child custody
    • Affirming the district court’s holding that, under the Hague Convention, the child in this child-custody dispute had as her “habitual residence” the United States, rather than Ireland, such that venue and choice-of-law would be in the United States. While the record evidence is conflicting, the Court held that, under the clear-error standard, the record sufficiently supported the district court’s finding of habitual residence.

Unpublished

  • U.S. v. Abujaber, 20-11213, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • D.H.H. v. Kirbyville Consolidated Independent School District, 20-40315, appeal from E.D. Tex.
    • per curiam (Wiener, Costa, Willett), Individuals with Disabilities Education Act, Americans with Disabilities Act
    • Affirming dismissal of plaintiffs’ IDEA and ADA claims on finding that the plaintiffs fail to meet the “intentional discrimination” standard on which their claims are based.
  • Kellum v. Texas, 20-40560, appeal from E.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claims as barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Eleventh Amendment, and the doctrines of absolute judicial and prosecutorial immunity.
  • U.S. v. Olgin, 20-50042, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, guilty plea
    • Affirming conviction of possession with intent to distribute five grams or more of actual methamphetamine.
  • Palacio v. Caraway, 20-50403, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), prisoner suit
    • Affirming summary judgment dismissal of prisoner’s § 1983 claims of of illegal search and seizure, excessive force, and failure to train.
  • Lockhart v. Republic Services, Inc., 20-50474, appeal from W.D. Tex.
    • Wiener, J. (Wiener, Dennis, Duncan), employment discrimination, Title VII, Fair Labor Standards Act
    • Affirming summary judgment dismissal of employee’s claims of racial discrimination under Title VII and overtime violations under the FLSA.
  • Awanayah v. Garland, 20-60291, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying in part and dismissing in part Cameroonian citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Gonzalez v. Garland, 20-60411, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s (IJ) denial of his claim for adjustment of status under 8 U.S.C. § 1255(i).
  • Perry v. Garland, 20-60621, petition for review of BIA order
    • per curiam (Southwick, Oldham, Wilson), immigration
    • Dismissing in part and denying in part Jamaican citizen’s petition for review of BIA order dismissing appeal of IJ order sustaining finding of removability and denying cancellation of removal, and for review of BIA order denying motion to reopen removal proceeding and reconsider dismissal of appeal.
  • Ailon-Mendosa v. Garland, 20-61033, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of motion to reopen removal proceedings.
  • U.S. v. Hanzik, 20-61221, appeal from S.D. Miss.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Irwin v. Santiago, 21-10020, appeal from N.D. Tex.
    • Dennis, J. (Dennis, Higginson, Costa), qualified immunity
    • Affirming grant of qualified immunity summary judgment to officer defendants who shot into the plaintiff’s vehicle as he was leaving the scene of a traffic stop after being ordered to stop, while he had narrowly avoided one of the two officers. The Court affirmed the district court’s holding that there was no law clearly establishing that the officers’ conduct was objectively unreasonable.
  • U.S. v. Taylor, 21-10124, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Coreno-Garay, 21-10149, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Granting summary affirmance of imposition of one-year supervised release as part of sentence for illegal reentry.
  • U.S. v. Flores, 21-10177, c/w 21-10179, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Levingston, 21-10181, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Landeta, 21-10186, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming 292-month sentence on conviction of possession with intent to distribute more than 500 grams of methamphetamine.
  • U.S. v. Gonzales, 21-10313, c/w 21-10965, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Liao, 21-10353, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Flores, 21-10568, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Savarino, 21-20133, appeal from S.D. Tex.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
    • Affirming 18-month sentence imposed on revocation of supervised release.
  • U.S. v. Brown, 21-30143, appeal from W.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming 84-month sentence on conviction of conspiracy to commit the § 924(c) offense of using, carrying, brandishing, and discharging firearms in relation to a crime of violence.
  • Dandridge v. St. Germain, 21-30275, appeal from M.D. La.
    • per curiam (Davis, Jones, Elrod), § 1983
    • Affirming denial of claims against Office of Motor Vehicles for denial of procedural due process in the non-renewal of an operator’s license.
  • Funky 544, L.L.C. v. Houston Specialty Insurance Co., 21-30310, appeal from E.D. La.
    • per curiam (Southwick, Oldham, Wilson), insurance
    • Affirming district court’s determination that insurer did not have a duty to defend in underlying litigation arising from a stabbing at a bar.
  • U.S. v. Joaquin-Lopez, 21-40262, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 120-month sentence on conviction of illegal reentry.
  • U.S. v. Torres-Reyes, 21-40278, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez-Melgar, 21-40340, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. McCall, 21-50201, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 57-month sentence on revocation of supervised release.
  • Virden v. City of Austin, 21-50597, appeal from W.D. Tex.
    • per curiam (Stewart, Haynes, Graves), election law
    • Affirming denial of preliminary injunction to enjoin enforcement of city ordinance preventing candidates running for city office from soliciting of receiving campaign donations prior to one year before the election, holding that plaintiff had failed to show irreparable harm.