November 2, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • Kapordelis v. Myers, 19-30968, appeal from W.D. La.
    • Wilson, J. (King, Higginson, Wilson), habeas corpus
    • Affirming denial of § 2241 petition filed by federal inmate as to his disciplinary conviction and deprivation of 27 days of good-conduct time upon being found to have violated Bureau of Prisons Disciplinary Code 218 for destruction of government property after he broke his government-issued CPAP machine.
    • The Court found that the record was not entirely devoid of evidence to support a finding that he broke the CPAP machine intentionally, or that the broken CPAP mask would be valued at less than the Code’s $100 threshold.
  • Family Rehabilitation, Inc. v. Becerra, 20-10271, appeal from N.D. Tex.
    • per curiam (Stewart, Ho, Engelhardt), Medicare
    • Reversing permanent injunction entered by district court barring the Department of Health and Human Services from recouping disputed funds from the plaintiff medical provider after the first two document-bound steps administrative review, before the provider had the opportunity to engage in in-person cross-examination and testimony at the third step of administrative review.
    • The Court held that, pursuant to its decision in Sahara Health Care Inc. v. Azar, 975 F.3d 523 (5th Cir. 2020), there was no possibility shown by the provider that the third-step review would further develop the factual record, such that there was no deprivation of procedural due process rights by allowing HHS to recoup funds after the second step of review (such recoupment subject to repayment to the provider if the decision nonetheless changed after third-step administrative review of subsequent judicial review).
  • U.S. v. Rebulloza, 20-11027, appeal from N.D. Tex.
    • Smith, J. (Higginbotham, Smith, Ho), criminal, sentencing
    • Affirming 240-month sentence on guilty-plea conviction of conspiring to possess with intent to distribute methamphetamine.
    • The Court held that, even if there had been any error in applying the Guidelines sentencing enhancement for imported methamphetamine where there had not been proof the defendant knew the meth originated in Mexico or in failing to apply a mitigating-role reduction, any error was harmless. “The guidelines are merely advisory.” Here, the Court held that the district court made clear that it would have sentenced the defendant to 240 months regardless of the objections and adjustments to the Guidelines range, particularly where 240 months was the statutory maximum for a lesser statutory charge than the defendant could have been charged under a statute with a 480-month maximum. “[T]he district court explicitly said it would have imposed the same sentence even if its guidelines calculations were wrong. But that’s not all. The district court repeatedly referenced the government’s ‘very generous’ charging decision and the resulting intra-conspiracy sentencing disparities. The court also observed that Rebulloza was part of ‘one of the largest methamphetamine rings to ever be charged in the Northern District of Texas.’ … After noting the seriousness of the offense, the court independently found that the statutory maximum penalty was necessary to achieve the goals of § 3553(a). That evidence convincingly demonstrates that the court would have imposed a 240-month imprisonment for the same reasons it previously gave, notwithstanding any claimed error.”
  • Scott v. U.S. Bank National Association, 21-10031, appeal from N.D. Tex.
    • per curiam (King, Smith, Haynes), employment discrimination
    • Affirming in part and reversing in part § 1981 claims against former employer for allegedly taking retaliatory actions against employee-plaintiff “because he opposed racial discrimination occurring within his department.”
    • The Court first held that the district court did not err in denying the plaintiff leave to amend his complaint, because the plaintiff “failed to offer any grounds as to why his leave should be granted or how deficiencies in his complaint could be corrected.”
    • The Court then reversed the district court’s dismissal of the § 1981 claim. The Court held that the plaintiff did engage in a protected activity, finding that he adequately alleged that the employer’s practice he had opposed was unlawful. “Importantly, a plaintiff need not demonstrate that the practice was actually unlawful for his opposition to be a protected activity; rather, it is enough that the plaintiff reasonably believed the practice was unlawful.” (Emphasis in original). “Construing the facts in the light most favorable to Scott, as we must at this stage of the proceedings, he has successfully pleaded facts that could support a reasonable belief. Scott alleged that he overheard a supervisor state that ‘he intended to terminate four (4) African American employees.’ A supervisor’s considering of the race of an employee when deciding to terminate that employee is an unlawful employment practice. 42 U.S.C. § 2000e-2(m).”
    • The Court held that the district court inappropriately required the plaintiff to show, at the 12(b)(6) stage, that the employer intended to replace the four workers with members of an unprotected class. “[S]ince McDonnell Douglas cannot be dispositive at this stage—and it is not guaranteed McDonnell Douglas will ultimately apply, as discovery may reveal direct evidence—that requirement was premature.”
  • Gezu v. Charter Communications, 21-10198, appeal from N.D. Tex.
    • Wilson, J. (Owen, Jones, Wilson), arbitration
    • Affirming district court’s order granting a motion to compel arbitration of plaintiff’s employment discrimination claims.
    • The Court held that, when the employer emailed notice of the launch of its arbitration program, with links to further details about the program and instructions on how to opt out, along with notice that failure to opt out within 30 days of the notice would constitute agreement by the employee to the arbitration program, the plaintiff had the requisite notice and agreement to be bound by the arbitration provision.

Unpublished

  • U.S. v. Markwith, 20-11160, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Graves), criminal, First Step Act
    • Vacating denial of defendant’s motion for compassionate release under the First Step Act, and remanding for further consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • Kaigler v. LeBlanc, 20-30561, appeal from M.D. La.
    • per curiam (Jones, Duncan, Engelhardt), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim alleging that he is subjected to unsafe and unsanitary conditions of confinement.
  • George v. SI Group, Inc., 20-40427, appeal from S.D. Tex.
    • per curiam (Jolly, Haynes, Oldham), personal tort, jurisdiction
    • Before taking up merits of appeal from dismissal of plaintiff’s claims against defendants on premises liability and other personal tort claims, entering a limited remand to the district court to determine whether diversity jurisdiction existed at the time of removal, as the record on appeal contains insufficient judicially noticeable evidence of the citizenship of two of the defendants.
  • U.S. v. Majors, 20-40629, appeal from E.D. Tex.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
    • Affirming 480-month sentence on conviction of conspiring to: kidnap and hold a person for ransom or reward, and launder the proceeds of an unlawful activity.
  • De Leon v. U.S. Department of Justice, 20-50415, appeal from W.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 action.
  • U.S. v. Nava, 21-50165 c/w 21-50174, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 327-month sentence on conviction of possession with intent to distribute methamphetamine, and consecutive sentence for violation of prior-offense term of supervised release.