December 2-3, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • Gross v. Keen Group Solutions, L.L.C., 20-20594, appeal from S.D. Tex.
    • Jones, J. (Jones, Smith, Haynes), Haynes, J., dissenting; appellate jurisdiction
    • Dismissing appeal of district court’s denial of defendant’s Rule 60(b)(5) motion in dispute over whether arbitration award had been fully satisfied. The Court found that “[t]he district court here still has a number of issues to resolve before it can order or deny execution of judgment. The appeal is premature.”
    • Judge Haynes dissented. She opined that the determination that KGS had not satisfied the arbitration award judgment, which was implicit in the district court’s denial of KGS’s Rule 60(b)(5) motion, was itself a final judgment.
  • Bonvillian Marine Service, Inc. v. Pellegrin, 20-30767, appeal from E.D. La.
    • Engelhardt, J. (Barksdale, Engelhardt, Oldham), maritime law, Limitation of Liability Act
    • Reversing the district court’s dismissal of the plaintiff’s limitation of liability act as lacking subject matter jurisdiction because it was untimely filed.
    • The district court had relied on the Fifth Circuit’s decision in In re Eckstein Marine Serv. L.L.C., 672 F.3d 310, 315–16 (5th Cir. 2012). Observing that the Supreme Court’s decision in United States v. Kwai Fun Wong, 575 U.S. 402 (2015), represents an intervening change in the law, the Court held that the Eckstein rule was overturned.
    • In Eckstein, in 2012 the Court had held that the Limitation Act’s six-month filing requirement was a statutory filing deadline that is jurisdictional. In Kwai Fun Wong, in 2015 the Supreme Court held that time limitations in the Federal Tort Claims Act were nonjurisdictional “and reiterated a burgeoning ‘clear statement’ rule for interpreting statutory procedural rules in general.” The Court here observed that Kwai Fun Wong directly abrogated a Fifth Circuit decision that was the “cornerstone” of the Eckstein opinion, In re FEMA Trailer Formaldehyde Products Liability Litigation, 646 F.3d 185, 189 (5th Cir. 2011).
    • The Court then held that the rule of orderliness allows a revisiting of Eckstein in these circumstances. “The Supreme Court’s jurisprudence on the jurisdictional significance of statutory procedural rules ‘fundamentally changes’ the analysis this court must perform in determining whether § 30511(a)’s six-month filing requirement imposes a jurisdictional barrier to suit or a mere claim-processing rule.”
    • The Court then concluded, “This panel is obliged to acknowledge the Supreme Court’s implicit overruling of Eckstein and now holds that the time limitation set forth in 46 U.S.C. § 30511(a) is a mere claim-processing rule which has no bearing on a district court’s subject matter jurisdiction.”
  • Spagnol-Bastos v. Garland, 20-60139, petition for review of BIA order
    • per curiam (Owen, Jones, Wilson), immigration
    • Denying Brazilian citizen’s petition for review of BIA order affirming IJ’s denial of motion to reopen in absentia removal order issued 18 years prior, on the basis that the failure of the petitioner to be notified of the original removal hearing was due to his failure to provide a viable address upon being released on bond.
    • The Court held that the IJ and BIA did not fail to consider the petitioner’s affidavit that he had provided the correct address information to the immigration official and that it was the official who had erred in writing down the address, but that they had merely determined that the affidavit testimony was not credible.
    • As to the petitioner’s argument that Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), rendered his presence in the U.S. uninterrupted for more than ten years, the Court held that the petitioner had forfeited the argument by failing to “analyze [it] in a meaningful way in his opening brief,” even though Niz-Chavez had not been issued at that time. “It is of n consequence that then-valid Fifth Circuit precedent foreclosed his cancellation argument at the time he submitted his opening brief because that argument was nonetheless available to him. Indeed, two sister circuits had already rejected the two-step notice theory.”
  • Tango Marine, S.A. v. Elephant Group Ltd., 21-10068, appeal from N.D. Tex.
    • Southwick, J. (Jones, Southwick, Engelhardt), default judgment
    • Affirming default judgment against two Nigerian business entities in maritime case.
    • The Court held that, while it may disagree with the district court that the defendants’ failure to file an answer to an amended complaint was “willful” (“We doubt that ‘willful’ is the right label for counsel’s failure to file an answer. It did, after all, quickly make a filing referring to the new complaint. Inadvertence, clumsiness, or related labels come to mind. Whatever the inaction should be called, there was no filed answer.”), it may still find that the district court did not abuse its discretion in not setting aside the default when the defendant fails to present a meritorious defense. “That makes sense, as setting aside the default in the absence of a meritorious defense just postpones the inevitable.”
    • The Court held that the defendants’ assertion of a defense of lack of personal jurisdiction was not a meritorious defense because the plaintiff had alleged quasi in rem jurisdiction and sought writs of attachment for various assets of the defendants that the plaintiff believed were present in the district. “Tango’s good faith allegations in its complaint were the ‘jurisdictional facts’ that generated Rule B in personam jurisdiction over the Elephant Group. When the district court entered the second default, this jurisdiction existed. Thus, even assuming that a lack of personal jurisdiction amounts to a meritorious defense, here there was jurisdiction over the Elephant Group.”
  • In re: Rodriguez, 21-10936, motion for order authorizing N.D. Tex. to consider successive § 2255 motion
    • per curiam (Stewart, Haynes, Ho), habeas corpus
    • Denying motion for authorization to file a successive § 2255 motion. The Court held that Borden v. United States, 141 S. Ct. 1817 (2021), “did not announce a new rule of constitutional law but instead addressed a question of statutory construction.”
  • Al-Qarqani v. Saudi Arabian Oil Co., 21-20034, appeal from S.D. Tex.
    • Jolly, J. (Jolly, Haynes, Oldham), appellate jurisdiction, arbitration, Foreign Sovereign Immunities Act
    • Vacating judgment of district court denying enforcement of an arbitral award reached by an Egyptian arbitration panel against the defendant oil company that is an instrumentality of a foreign state.
    • As the district court noted, the “arbitration proceeding was conducted in direct contravention of the agreement’s explicit procedural terms and was so riddled with irregularities that it resulted in criminal convictions for several of the arbitrators involved.”
    • The Court first held that it did have appellate jurisdiction because, although the plaintiffs’ motion for reconsideration had been struck for procedural irregularities and the plaintiffs then filed their notice of appeal 29 days after that motion was struck for non-compliance with local rules, Fed. R. Civ. P. 83(a) provided that “[a] local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply.”
    • The Court then held that the federal courts lacked subject matter jurisdiction over the case because the defendant oil company was immune under the FSIA. The Court held “that Saudi Aramco is a ‘foreign state’ for purposes of the FSIA. It is a distinct legal entity incorporated under Saudi law, a majority of whose shares are owned by the Kingdom of Saudi Arabia and whose principal place of business is in Saudi Arabia. That satisfies the definition of ‘foreign state’ set forth in the FSIA.” The Court then held that none of the FSIA exceptions applied.

Unpublished

  • Smith v. Lumpkin, 19-20759, appeal from S.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), habeas corpus
    • Dismissing appeal of interlocutory order denying stay and abatement of § 2254 proceedings.
  • Branch v. Ladner, 19-60802, appeal from S.D. Miss.
    • per curiam (Smith, Stewart, Graves), prisoner suit
    • Affirming dismissal of prisoner’s suit that warden did not conduct adequate investigation during his disciplinary proceedings.
  • Mtaza v. Garland, 20-11220, appeal from N.D. Tex.
    • per curiam (King, Costa, Willett), habeas corpus, mootness
    • Vacating district court’s dismissal of immigrant detainee’s § 2241 petition, and dismissing for lack of jurisdiction where detainee was no longer in custody.
  • Brown v. McConnell, 20-30671, appeal from W.D. La.
    • per curiam (Smith, Stewart, Graves), habeas corpus
    • Affirming denial of § 2241 petition alleging lack of due process in disciplinary hearing.
  • U.S. v. Rubin, 20-30695, appeal from W.D. La.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Vacating sentence that failed to account for fact that Bureau of Prison’s would not give the defendant credit for time already served, and remanding for resentencing.
  • U.S. v. Brown, 20-40481, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 60-month sentence on conviction of being a felon in possession of a firearm and a felon in possession of ammunition.
  • U.S. v. Leone, 20-40768, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Falcetta v. U.S., 20-50247, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Wilson), habeas corpus
    • Affirming dismissal of § 2241 petition for failure to exhaust administrative remedies.
  • Staten v. Harrison County, 20-60329, appeal from S.D. Miss.
    • per curiam (Jolly, Willett, Engelhardt), personal tort
    • Affirming dismissal of plaintiff’s wrongful death action for lack of Article III standing, but amending judgment to reflect that dismissal was without prejudice.
  • Gonzalez v. Garland, 20-60482, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Mexican citizen’s petition for review of BIA order affirming the denial of his motion to reopen for lack of jurisdiction.
  • Ramsey v. Management Training & Corp., 20-61100, appeal from N.D. Miss.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous the appeal of the dismissal of prisoner’s § 1983 action.
  • U.S. v. Ramsey, 21-10209, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Wade v. Wichita County, 21-10283, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), habeas corpus
    • Dismissing as moot appeal from denial of § 2241 petition seeking release from pretrial detention; after district court denied the petitioner’s motion, he was tried, convicted, and sentenced to life in prison on five counts of sexual assault of a minor.
  • U.S. v. Harris, 21-10450, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lerma-Reyes, 21-10520, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of sentence on conviction for illegal reentry.
  • U.S. v. Rodriguez-Vasquez, 21-10571, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of sentence on conviction for illegal reentry.
  • Evans v. Lindley, 21-20118, appeal from S.D. Tex.
    • per curiam (Barksdale, Engelhardt, Oldham), § 1983
    • Affirming summary judgment dismissal of § 1983 claim for unlawful detention arising from officer’s interaction with man he had mistakenly believed to be a fugitive.
  • Soto v. MD Anderson Cancer Center, 21-20249, appeal from S.D. Tex.
    • per curiam (Wiener, Graves, Ho), sovereign immunity, Americans with Disabilities Act, employment discrimination
    • Reversing district court’s denial of motion to dismiss on sovereign immunity grounds.
  • Collins v. Newman, 21-20355, appeal from S.D. Tex.
    • per curiam (Clement, Ho, Oldham), § 1983
    • Dismissing as frivolous appeal from dismissal of plaintiff’s suit.
  • United My Funds, L.L.C. v. Mubaidin, 21-40039, appeal from E.D. Tex.
    • per curiam (Barksdale, Engelhardt, Oldham), business torts
    • Affirming jury verdict in favor of plaintiff on claims of theft by defendant when defendant sold the inventory of three gas stations that did not belong to him.
  • U.S. v. Flores-Vivanco, 21-40398, appeal from E.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Quiroga-Delgado, 21-40408, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Ledermann v. Coastal Health, 21-40561, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), Federal Tort Claims Act
    • Affirming judgment in favor of defendant on plaintiffs’ FTCA claim that they had received hepatitis due to federally funded clinic’s infection prevention protocols.
  • U.S. v. Tobar, 21-50148, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Rojo-Sanchez, 21-50151, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Farley, 21-50318, appeal from W.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
    • Affirming 360-moonth sentence on conviction of conspiring to possess, with intent to distribute, 50 grams or more of actual methamphetamine.
  • Lucas v. Moore, 21-50486, appeal from W.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 suit.
  • U.S. v. Trujillo-Gutierrez, 21-50488, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of sentence on conviction for illegal removal.
  • Shopon v. Garland, 21-60275, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying Bangladeshi citizen’s petition for review of BIA order upholding IJ’s determination that he was not entitled to asylum, withholding of removal, or protection under the Convention Against Torture (CAT) because he was not credible.
  • Louis-Joseph v. Garland, 21-60366, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying French citizen’s petition for review of BIA order denying her motion to remand and dismissing her appeal of the immigration judge’s (IJ) denial of her petition to remove conditions on her permanent resident status.