Designated for publication
- Coleman v. BP Exploration & Production, Inc., 20-40811, appeal from S.D. Tex.
- Willett, J. (Higginbotham, Willett, Duncan), negligence, independent contractor
- Affirming summary judgment dismissal of claims against project management company (BP) and against day-to-day management company (Grand Isle Shipping), on claims of employee of scaffolding subcontractor arising from plaintiff’s back injury received while constructing scaffold on offshore platform.
- The Court held that the district court did not err in finding that there were no genuine disputes as to the material facts whether the plaintiff’s employer was an independent contractor to the defendants, whether the defendants nevertheless exercised operational control over the plaintiff’s employer, or whether the defendants were nevertheless vicariously liable for authorizing unsafe work practices.
- Webster v. Kijakazi, 20-60856, appeal from N.D. Miss.
- Southwick, J. (Elrod, Southwick, Costa), social security
- Affirming district court’s affirmance of decision of Social Security Commissioner to deny disability benefits to plaintiff.
- The Court rejected the plaintiff’s arguments that the ALJ erred in assessing the plaintiff’s Residual Function Capacity and in declining to order a Consultative Exam, and that the ALJ did not analyze plaintiff’s impairments under the proper listing to consider whether he could maintain employment.
- New York Party Shuttle, L.L.C. v. NLRB, 20-61072, petition for review of NLRB Decision
- Clement, J. (Clement, Southwick, Willett), labor law
- Affirming in part, and reversing and remanding in part petitioner’s appeal of NLRB’s backpay award of $91,000 to employee who had been fired for attempting to unionize.
- Previously, the NLRB had held that the petitioner (NYPS) had committed an unfair labor practice and ordered NYPS to reinstate the employee; NYPS had appealed the Board’s finding but had failed to file an opening brief, and the Court had entered a default against NYPS. The NLRB subsequently made its backpay award.
- The Court held that substantial evidence supports the NLRB’s finding that NYPS and several other tour-bus companies constituted a “single employer” for purposes of the imposition of liability for the backpay award, because they constituted an “integrated enterprise.”
- The Court then held that the prior ruling on the merits of the unfair labor practice finding were not rendered void by the Supreme Court’s subsequent holding in NLRB v. Noel Canning, 573 U.S. 513, 519 (2014). Noel Canning concerned whether the members of the Board were constitutionally appointed, and held that they were not. “The Board undoubtedly lacked a quorum with only two constitutionally appointed members. See 29 U.S.C. § 153(a), (b). As such, the Board could not validly exercise its power, just as the Supreme Court held in Noel Canning.” Nevertheless, the Court noted that the petitioners here “did not immediately assert this constitutional defect.” The Court then held that its jurisdiction to review the merits in the prior proceeding was not impinged by the constitutional defect in the composition of the Board. The Court held that “[t]here is no excuse” for the petitioners’ failure to raise the constitutional defect at the time of their appeal of the underlying merits decision, when they failed to file any opening brief. “Petitioners cannot now litigate this issue when it could have been raised on the initial appeal.”
- The Court then affirmed the Board’s backpay order, “save the portion of that order awarding backpay for the period of October 2014 to 2018” because calculation of backpay for that period consisted of “impermissible speculation.”
- Fire Protection Service, Inc. v. Survitec Survival Products, Inc., 21-20145, appeal from S.D. Tex.
- Elrod, J. (Elrod, Oldham, Wilson), unfair trade practices
- Granting motion to certify to Texas Supreme Court question arising from dispute between manufacturer of life rafts (Survitec) and distributor of those life rafts pursuant to an open-ended oral agreement (Fire Protection).
- The district court had dismissed Fire Protection’s claims under the Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act (“the Texas Dealers Act”) on the basis that the act was unconstitutional “to the extent it retroactively amended the oral agreement between the two parties.”
- The Court held that the dispute raised an issue as to which there was insufficient guidance on which to make an Erie guess as to how the Texas Supreme Court would interpret the Texas law. The Court certified this question: “Does the application of the Texas Dealers Act t the parties’ agreement violate the retroactivity clause in article I, section 16 of the Texas Constitution?”
Unpublished
- U.S. v. Spann, 18-11324, appeal from N.D. Tex.
- per curiam (Davis, Jones, Elrod), habeas corpus, Armed Career Criminal Act
- Granting summary affirmance of district court’s granting of § 2255 petition for vacatur of conviction under the ACCA on finding that Texas robbery, evading arrest, and aggravated assault convictions no longer qualified as violent felonies under Johnson v. United States, 576 U.S. 591, 606 (2015).
- U.S. v. Rodriguez, 19-20045, appeal from S.D. Tex.
- per curiam (Elrod, Willett, Oldham), collateral order doctrine, criminal
- Dismissing appeal of order barring a particular assistant U.S. Attorney from appearing in a criminal case, on holding that collateral order doctrine was not applicable to such an order.
- Coria v. Garland, 19-60707, petition for review of BIA order
- per curiam (Jones, Southwick, Engelhardt), immigration
- Denying Mexican citizen’s petition for review of BIA order ordering his removal and rejecting all his claims, including that authorities in Mexico have been unable or unwilling to prevent his persecution for being homosexual.
- U.S. v. Benitez, 20-10494, appeal from N.D. Tex.
- per curiam (King, Smith, Wilson), criminal, sentencing
- On remand from the U.S. Supreme Court, vacating 18-month sentence on conviction for illegal reentry, and remanding with instruction to reform sentence to reflect that Rios Benitez was convicted and sentenced under 8 U.S.C. § 1326(b)(1).
- U.S. v. Okechuku, 20-10710, appeal from N.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- Ellis v. Carr, 20-10843, appeal from N.D. Tex.
- per curiam (Southwick, Graves, Costa), habeas corpus
- Dismissing as frivolous appeal from denial of § 2241 petition.
- U.S. v. Hamdooni, 20-11250, appeal from N.D. Tex.
- per curiam (Wiener, Graves, Ho), criminal, supervised release
- Affirming imposition of conditions of supervised release.
- U.S. v. Love, 20-20615, appeal from S.D. Tex.
- per curiam (Barksdale, Willett, Duncan), criminal, sentencing
- Affirming 121-month sentence on conviction of aiding and abetting interference with commerce by robbery and aiding and abetting using, carrying, and brandishing a firearm during, and in relation to, a crime of violence.
- Committe v. Gentry, 20-30456, appeal from W.D. La.
- per curiam (Southwick, Oldham, Wilson), § 1983
- Affirming dismissal of former assistant professor’s § 1983 claims against state university’s provost and vice president for academic affairs upon removal of plaintiff from teaching duties because he had chosen to use a self-published textbook and syllabus that other accounting faculty had not approved.
- Walter v. Perkins, 20-30547, appeal from M.D. La.
- per curiam (King, Costa, Ho), prisoner suit
- Affirming dismissal of prisoner’s suit for Eighth Amendment retaliation based on “vague” allegations of threats by prison officials if he filed an administrative grievance.
- Sanchez v. Chevron North America Exploration and Production Co., 20-30783, appeal from E.D. La.
- per curiam (Jones, Southwick, Costa), employment discrimination, Title VII
- Reversing district court’s dismissal of plaintiff’s pro se claims of employment discrimination for failure to follow the district court’s orders regarding pleading of the claims and for failure to state a claim; and remanding for further proceedings.
- U.S. v. Munoz, 20-30806, appeal from W.D. La.
- per curiam (King, Costa, Ho), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Arreola-Mendoza, 20-40068, appeal from S.D. Tex.
- per curiam (King, Smith, Wilson), criminal, sentencing
- Denying motion for panel rehearing of opinion issued on remand from U.S. Supreme Court, and issuing substitute opinion affirming 37-month sentence for illegal reentry.
- U.S. v. Lopez-Rodriguez, 20-40097, appeal from S.D. Tex.
- per curiam (Jolly, Elrod, Graves), criminal, sentencing
- On remand from U.S. Supreme Court, reinstating opinion affirming 57-month sentence on conviction of illegal reentry.
- Givens v. Charles, 20-40262, appeal from E.D. Tex.
- per curiam (Wiener, Dennis, Haynes), prisoner suit
- Affirming dismissal of prisoner’s § 1983 claims based on Younger abstention.
- U.S. v. Gace, 20-40718, appeal from S.D. Tex.
- per curiam (Southwick, Oldham, Wilson), criminal
- Affirming conviction of sexual exploitation of children by producing and attempting to produce child pornography, distribution of child pornography, receipt of child pornography, possession of child pornography, and attempted destruction of property, for which he was sentenced to 1,020 months in prison.
- U.S. v. Berdy, 20-40737, appeal from S.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Affirming conviction of one count of conspiracy to transport and move within the United States an alien unlawfully present in the United States and two counts of knowingly and recklessly transporting and moving within the United States an alien unlawfully present therein for private financial gain.
- Muhammad v. Wiles, 20-50279, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), § 1983, pretrial detention
- Dismissing for lack of jurisdiction civil rights claims raised by pretrial detainee.
- Ysleta del Sur Pueblo v. City of El Paso, 20-50313, appeal from W.D. Tex.
- per curiam (Owen, Jones, Wilson), federal question jurisdiction
- Affirming district court’s dismissal without prejudice of federally recognized tribe’s claims against city regarding ownership of property for lack of federal question jurisdiction.
- Joseph v. Garland, 20-60167, petition for review of BIA order
- per curiam (Southwick, Oldham, Wilson), immigration
- Denying Trinidadian citizen’s petition for review of BIA order rejecting his argument that he had become a naturalized citizen when he enlisted in the U.S. Navy.
- Velasquez-Lopez v. Garland, 20-60371, petition for review of BIA order
- per curiam (Barksdale, Willett, Duncan), immigration
- Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order denying her motion to reopen, based on ineffective assistance of counsel.
- Mendoza-Erazo v. Garland, 20-60490, petition for review of BIA order
- per curiam (Davis, Jones, Elrod), immigration
- Denying Honduran citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s (IJ) denial of asylum and withholding of removal.
- Reyes-Rubio v. Garland, 20-60566, petition for review of BIA order
- per curiam (Barksdale, Costa, Engelhardt), immigration
- Denying Salvadoran citizen’s petition for review of BIA order dismissing her appeal of an Immigration Judge’s (IJ) denial of protection under the Convention Against Torture.
- Noela v. Garland, 20-60683, petition for review of BIA order
- per curiam (King, Costa, Ho), immigration
- Denying Cameroonian citizen’s petition for review of BIA order affirming the denial by the immigration judge (IJ) of her applications for asylum, withholding of removal, and relief under the Convention Against Torture.
- Diaz v. Garland, 20-60848, petition for review of BIA order
- per curiam (Davis, Jones, Elrod), immigration
- Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order affirming the decision of the Immigration Judge (IJ) denying her application for withholding of removal.
- Gramajo-Reyes v. Garland, 20-60927, petition for review of BIA order
- per curiam (Davis, Jones, Elrod), immigration
- Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order upholding the ruling by an immigration judge (IJ) denying his motion to reopen.
- Ramirez-De Martinez v. Garland, 20-61143, petition for review of BIA order
- per curiam (Jolly, Willett, Engelhardt), immigration
- Denying Salvadoran citizens’ petition for review of BIA orders dismissing their appeal from the denial of their applications for asylum and withholding of removal.
- U.S. v. Jackson, 21-10099, appeal from N.D. Tex.
- per curiam (Elrod, Oldham, Wilson), criminal, compassionate release
- Dismissing as frivolous appeal from denial of motion for compassionate release.
- U.S. v. Zamora-Reyes, 21-10210, appeal from N.D. Tex.
- per curiam (King, Costa, Ho), criminal, sentencing
- Affirming 95-month sentence on conviction of illegal reentry.
- U.S. v. Dightman, 21-10279, appeal from N.D. Tex.
- per curiam (Higginbotham, Higginson, Duncan), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Tran, 21-10288, appeal from N.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Franco, 21-10327, appeal from N.D. Tex.
- per curiam (King, Costa, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Sepulveda, 21-10349, appeal from N.D. Tex.
- per curiam (King, Costa, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Bartolomeo USA, L.L.C. v. U.S. Department of Housing and Urban Development, 21-10493, appeal from N.D. Tex.
- per curiam (Barksdale, Engelhardt, Oldham), foreclosure
- Affirming summary judgment in favor of HUD on question of whether HUD properly foreclosed on a loan.
- U.S. v. Leija-Peralta, 21-10511, appeal from N.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal, sentencing
- Granting summary affirmance of 96-month sentence for illegal reentry.
- U.S. v. Higgins, 21-10544, appeal from N.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
- Granting summary affirmance of 64-month sentence and conviction of possessing a firearm following a felony conviction.
- Hadley v. The Bank of New York Mellon, 21-20225, appeal from S.D. Tex.
- per curiam (Davis, Jones, Elrod), res judicata, foreclosure
- Affirming dismissal as barred by res judicata, plaintiff’s suit arising from foreclosure.
- Swindle v. Ma’at, 21-30371, appeal from W.D. La.
- per curiam (Jolly, Willett, Engelhardt), habeas corpus
- Affirming dismissal of § 2241 petition challenging petitioner’s disciplinary conviction for attempted mail abuse and the resulting loss of good time credits.
- Scioneaux v. Southeastern Grocers, L.L.C., 21-30384, appeal from E.D. La.
- per curiam (King, Costa, Ho), employment discrimination
- Affirming dismissal of plaintiff’s claims under Louisiana law for discriminatory discharge and failure to accommodate his medical impairments.
- U.S. v. Johnson, 21-40224, appeal from E.D. Tex.
- per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- Nguyen v. Texas Farmers Insurance Co., 21-40266, appeal from E.D. Tex.
- per curiam (Clement, Ho, Oldham), insurance
- Affirming dismissal of plaintiff’s claim against insurer arising from flood loss following Hurricane Harvey.
- U.S. v. Garcia, 21-40270, appeal from S.D. Tex.
- per curiam (King, Costa, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Macias-Lerma, 21-40328, appeal from S.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Bradley, 21-40379, appeal from E.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Chavero, 21-40385, appeal from S.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Reyes, 21-40405, appeal from E.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. De Hoyos-Lopez, 21-40409, appeal from S.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Hamby, 21-50344, appeal from W.D. Tex.
- per curiam (Southwick, Oldham, Wilson), criminal, sentencing
- Affirming sentence of 10 years for being a felon in possession of a firearm.
- U.S. v. Johnson, 21-50345, appeal from W.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Pascoe, 21-50366, appeal from W.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Arzate-Gameroz, 21-50400, c/w 21-50414, appeal from W.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
- Granting summary affirmance of 16-month sentence for illegal reentry.
- U.S. v. Medina-Aguilar, 21-50402, appeal from W.D. Tex.
- per curiam (Southwick, Oldham, Wilson), criminal, sentencing
- Granting summary affirmance of 38-month sentence for illegal reentry.
- U.S. v. Rivas-Garcia, 21-50464, appeal from W.D. Tex.
- per curiam (King, Costa, Ho), criminal, sentencing
- Granting summary affirmance of 46-month sentence on conviction for illegal reentry.
- U.S. v. Romero-Sandoval, 21-50503, appeal from W.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal, sentencing
- Granting summary affirmance of sentence on conviction for illegal reentry.
- U.S. v. Flores-Gamino, 21-50504, appeal from W.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
- Granting summary affirmance of sentence on conviction for illegal reentry.
- U.S. v. Amaya-Martinez, 21-50517, c/w 21-50540, appeal from W.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal, sentencing
- Granting summary affirmance of sentence on conviction of illegal reentry.
- U.S. v. Pulido-Mendez, 21-50520, c/w 21-50521, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal, sentencing
- Granting summary affirmance of 21-month sentence on conviction of illegal reentry.
- U.S. v. Perez-Alvarado, 21-50548, appeal from W.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal, sentencing
- Granting summary affirmance of sentence on conviction of illegal reentry.
- U.S. v. Gamboa-Rivera, 21-50551, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Graves), criminal, sentencing
- Granting summary affirmance of 27-month sentence on conviction of illegal reentry.
- U.S. v. Normand, 21-60441, appeal from S.D. Miss.
- per curiam (Barksdale, Willett, Duncan), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. McCraney, 21-60446, appeal from S.D. Miss.
- per curiam (King, Costa, Ho), criminal, supervised release
- Affirming imposition of supervised release special conditions.
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