November 10, 2021, opinions

Designated for publication

  • Guzman v. Allstate Assurance Co., 20-11247, appeal from N.D. Tex.
    • Elrod, J. (Davis, Elrod, Oldham), insurance
    • Reversing summary judgment in favor of life insurance company on widow/beneficiary’s suit for recovery of life insurance benefits after her 28-year-old husband died after suffering a seizure.
    • The insurer determined that the insured would not have been issued the life insurance policy had he been a smoker, and rescinded his policy after he died when, during a contested-claim investigation, it received medical records that classified him as a smoker. (When applying for the policy, he had disclosed his history of seizures, but had represented that he was not currently and had not been a smoker). In the subsequent suit, the insured’s widow and his sister both submitted affidavits and provided deposition testimony that he was not a smoker, as they had never seen him smoke nor smelled smoke on him or his belongings. The district court held that the affidavits and testimony did not create a genuine fact issue as to whether he was smoker when he applied for the insurance because they were “self-serving.”
    • The Court held that “‘[S]elf-serving’ affidavits and depositions may create fact issues even if not supported by the rest of the record. Where self-interested affidavits are otherwise competent evidence, they may not be discounted just because they happen to be self-interested.” When the facts contained in the affidavit or testimony are particularized and not vague or conclusory, then they “sufficient to create a genuine issue of material fact.”
    • The Court also found that the record did not support that the insurer met its burden for summary judgment even in the absence of the affidavits and deposition testimony, as the medical records were contradictory on the issue of whether the insured was a smoker, and the urine test he had submitted to when applying for the policy showed no traces of nicotine.
  • Moler v. Wells, 20-30132, appeal from W.D. La.
    • Higginson, J. (Dennis, Higginson, Costa), Federal Tort Claims Act, venue
    • Vacating district court’s dismissal of plaintiff’s FTCA claim on the basis that the Western District of Louisiana may have been an improper venue and venue may be jurisdictional in FTCA claims; affirming implicit denial of implicit motion to amend complaint to add a Bivens claim; and remanding for a determination of proper venue.
    • Noting that an FTCA claim may be brought “”only in the judicial district where the plaintiff resides or wherein the act of omission complained of occurred,” 28 U.S.C. § 1402(b), the Court found that venue was implicated because, while the plaintiff alleged he was improperly denied medical care at the Federal Correctional Institute in Oakdale, Louisiana, he did not seek medical care until after his transfer to the facility at Forrest City, Arkansas. “Thus, the omissions that Moler complains of took place exclusively in Forrest City, which is in the Eastern District of Arkansas.” However, because venue is also proper in the district where the plaintiff resides, and because residency of someone who is incarcerated is not the place incarceration but the district where he was domiciled prior to incarceration, the Court held that the district court must make a determination of whether the plaintiff had been domiciled in the Western District of Louisiana prior to incarceration.
    • The Court then held that the district court did not abuse its discretion in implicitly denying the plaintiff’s implicit motion to amend his complaint to add a Bivens claim against the individual officer he alleged had injured his shoulder, because the complaint did not sufficiently allege facts to support a claim of deliberate indifference to his medical needs by the officer.
  • ADT, L.L.C. v. Richmond, 21-10023, appeal from N.D. Tex.
    • Smith, J. (King, Smith, Haynes), Haynes, J., concurring; arbitration
    • Vacating district court’s dismissal for lack of diversity jurisdiction of plaintiff’s suit to enforce its arbitration clause under § 4 of the Federal Arbitration Act, and remanding for further proceedings.
    • The Court held that, while Vaden v. Discover Bank, 556 U.S. 49 (2009), directs that federal courts may “look through” the federal FAA complaint to related state court pleadings to determine if the claims underlying the FAA suit are ones that could have been brought in federal court, Vaden‘s look-through does not include a looking-through to determine the diversity of citizenship. Here, the FAA suit was merely between ADT and the homeowner/customer; thus, while the underlying state-court litigation was a suit by the homeowner against ADT and its technician (who, like the homeowner, was a citizen of Texas), the Court held that diversity nevertheless existed over ADT’s FAA suit.
    • “Section 4 is clear: The only controversy that bears on our jurisdiction is ‘the controversy between the parties.’ 9 U.S.C. § 4 (emphasis added). Those ‘parties’ are only the parties to the suit to compel arbitration.” (Emphasis provided by Court). Regarding Vaden, the Court held, “Vaden does not control. There, the Court explained only how we must define the § 4 ‘controversy.’ It never defined the ‘parties’ whom § 4 describes.”
    • Judge Haynes concurred in the judgment only.
  • U.S. v. De La Cruz, 21-50394, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), Costa and Ho, JJ., concurring (joined by King, J.) criminal, sentencing
    • Granting summary affirmance of 50-month sentence for illegal reentry, based on prior felony conviction that raised the statutory maximum sentence from two years to ten years, on finding that defendant’s argument of unconstitutionality was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998).
    • In a separate concurrence co-authored by Judges Costa and Ho and joined in by Judge King, the judges noted that “[o]ur court has issued countless orders in cases like this one.” The judges noted that panels of the Court will occasionally accompany such orders with admonitions against bringing such claims notwithstanding Almendarez-Torres. “We write separately today to make clear that we do not join in these admonitions. To the contrary, we recognize that members of the Supreme Court, including one who joined the majority opinion, have concluded that Almendarez-Torres was wrongly decided—and that the only issue is whether the Court should overturn Almendarez-Torres, or whether principles of stare decisis should trump the constitutional rights of the accused. … Perhaps the Supreme Court will one day take up the call to overturn Almendarez-Torres. Perhaps not. But preserving one’s rights just in case is not just reasonable. Failure to do so risks forfeiting the right altogether.”

Unpublished

  • Alderidge v. Painter, 19-50903, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim, for failure to address the grounds on which the district court dismissed the claims.
  • U.S. v. Potter, 20-10861, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hanna v. U.S., 20-30581 c/w 21-30410, appeal from W.D. La.
    • per curiam (Clement, Ho, Oldham), Federal Tort Claims Act
    • Affirming dismissal of plaintiff’s two FTCA claims for lack of exhaustion of administrative remedies and for misrepresentation.
  • U.S. v. Youngblood, 20-40550, appeal from E.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Vacating dismissal of motion for compassionate release, and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388, 389-90 (5th Cir. 2021).
  • Padilla v. Garland, 20-60412, petition for review of BIA order
    • per curiam (Southwick, Oldham, Wilson), immigration
    • Denying Mexican citizen’s petition for review of BIA dismissal of appeal from IJ’s affirming of an asylum officer’s determination that she lacked a reasonable fear of persecution or torture.
  • U.S. v. Whaley, 21-10272, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming sentence of 240 months’ imprisonment and lifetime supervised release on guilty-plea conviction of receipt of a visual depiction of a minor engaging in sexually explicit conduct.
  • U.S. v. Palmer, 21-10464, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Woods, 21-30043, appeal from W.D. La.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Fisher, 21-40004, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Gilliard v. Lumme, 21-50339, appeal from W.D. Tex.
    • per curiam (Clement, Ho, Oldham), § 1983
    • Affirming judgment dismissing § 1983 claim arising from termination of parental rights.
  • U.S. v. Santiago-Razo, 21-50505, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of sentence upon conviction of illegal reentry.
  • Sauter v. Commissioner of Internal Revenue, 21-60397, appeal from U.S. Tax Ct.
    • per curiam (Wiener, Dennis, Haynes), tax
    • Affirming Tax Court’s judgment that argument that unreported income was nontaxable income was frivolous and imposing penalty.
  • U.S. v. James, 21-60414, appeal from S.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming 12-month sentence upon revocation of supervised release.