November 5-6, 2021, opinions

Designated for publication

  • Houston v. Texas Department of Agriculture, 20-20591, appeal from S.D. Tex.
    • Higginson, J. (King, Higginson, Wilson), retaliation, Family and Medical Leave Act, Rehabilitation Act
    • Affirming summary judgment dismissal of plaintiff’s claims of retaliation for exercising rights under the Family and Medical Leave Act and for discrimination under the Rehabilitation Act.
    • The Court held that there was no genuine dispute of the fact that the defendant state agency had contemporaneously stated reasons for the plaintiff’s termination, regarding excessive absenteeism and other performance issues that did not include FMLA-related leave taken by the plaintiff. “These include the written warnings from August 2016 (amended in October 2016) and the probationary warning in April 2017. Specifically, as to Houston’s work performance, this also included an August 3, 2017 email with a ‘Chart of Progress’ related to Houston’s specific work assignments during her probationary period, and the corresponding deficiencies and comments.”
    • The Court then held that various deviations from agency policy alleged by the plaintiff either were not actual deviations, or were not of the quality that would tend to show that the invocation of the disciplinary policy was pretextual.
    • For the same reasons the Court upheld the dismissal of the plaintiff’s FMLA claim, it upheld the dismissal of her Rehabilitation Act claim, the RA claim was “intimately connected to her FMLA retaliation claim.”

Unpublished

  • U.S. v. Galvez, 20-20449, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming 60-month sentence on conviction of illegal reentry.
  • Branham v. McConnell, 20-30655, appeal from W.D. La.
    • per curiam (Davis, Jones, Elrod), habeas corpus
    • Affirming district court’s decision that it lacked jurisdiction to hear petitioner’s successive § 2255 petition.
  • Liberty Insurance Underwriters, Inc. v. LaBarre, 20-30810, appeal from E.D. La.
    • per curiam (Owen, Jones, Wilson), settlement agreement
    • Affirming district court granting summary judgment to plaintiff insurance company to enforce rights under settlement agreement to be paid by defendants from proceeds of future settlements with other insurance defendants in underlying litigation arising from sinkhole catastrophe.
  • Amaya-Lara v. Garland, 20-60338, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order upholding the denial of his asylum application.
  • Palacios-Diaz v. Garland, 20-60861, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order upholding the denial by an immigration judge (IJ) of her motion to reopen her immigration proceedings and rescind the in absentia removal order.
  • Landis v. Martin, 20-60939, appeal from S.D. Miss.
    • per curiam (Davis, Jones, Elrod), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s suit that he faced retaliation for requesting transfer to another prison.
  • U.S. v. Tarango, 21-50223, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Goodwin v. Kijakazi, 21-60225, appeal from N.D. Miss.
    • per curiam (Higginbotham, Smith, Ho), social security
    • Affirming denial of disability benefits under Social Security Act.
  • BST Holdings, L.L.C. v. Occupational Safety and Health Administration, 21-60845, petition for review of OSHA Emergency Temporary Standard
    • per curiam ((Jones, Duncan, Engelhardt), COVID-19, administrative law
    • Granting emergency motion to stay the enforcement of OSHA’s Emergency Temporary Standard mandating COVID-19 vaccination of employees at workplaces with 100 or more employees, pending expedited judicial review. “Because the petitioner give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby stayed pending further action by this court.”