February 1, 2022, opinions

Designated for publication

  • U.S. v. Martinez, 21-30068, appeal from W.D. La.
    • Davis, J. (Davis, Jones, Elrod), criminal, search and seizure
    • Affirming denial of motion to suppress evidence seized from USPS packages; defendant had argued that reasonable suspicion did not exist to detain the packages, and that the 17-day delay between their detention and the search of them was unreasonable under the 14th Amendment.
    • The Court held that the district court properly found that multiple factors regarding the two packages at issue met the “drug package profile” characteristics. “Specifically, (1) the information on the shipping labels was handwritten, (2) the postage fees were paid in cash, allowing the sender to remain anonymous or avoid detection by law enforcement; (3) the Southern District of California is known as a source region for controlled substances; and (4) at least one of the men mailing a package appeared to be anxious or nervous. Finally, although the handwriting on the shipping labels for the two packages appeared identical, as though the same person filled out both shipping labels, the purported senders’ names on the labels were different.” Accordingly, the Court held that there was reasonable suspicion to detain the packages.
    • The Court held that the delay in investigating the packages was not unreasonable, as any heightened probable cause standard was met when a drug dog alerted on the packages eight days into that period, and because there were factors beyond the investigator’s control that further contributed to the delay. “It was undisputed that during those eight days, which included a weekend, Arias was required to work on other cases and missed work due to illness.” The Court also held that the further delay from establishment of probable cause to investigation of the packages was not unreasonable. “It was undisputed that during those eight days, Arias was required to work on other cases, he took a sick day, and the delay included a weekend. Under these circumstances, the eight-day delay between the establishment of probable cause and obtaining the search warrants was reasonable.”
  • Residents of Gordon Plaza, Inc. v. Cantrell, 21-30294, appeal from E.D. La.
    • Clement, J. (Owen, Clement, Engelhardt), Resource Conservation and Recovery Act
    • Affirming dismissal of citizen suit brought against the City of New Orleans under RCRA brought by citizens’ group of residents of a neighborhood built on top of a Superfund site that was once a municipal landfill.
    • The plaintiffs brought suit seeking a declaration of imminent endangerment, but neglected to reference a 2008 consent decree entered into between the City and EPA regarding containment and mitigation measures. The City attached the decree to its responsive pleadings and moved for dismissal based on RCRA’s bar to citizens’ suits where a “responsible party is diligently conducting a removal action.” The district court granted the motion to dismiss and denied a subsequent motion for reconsideration.
    • The Court first held that the City had properly raised the citizens’ suit statutory bar in its initial motion to dismiss, and not for the first time in its reply.
    • The Court then held that the actions taken by the City under the consent decree were “removal” actions to trigger the statutory bar. The Court held that language in a 2002 proposed EPA rule would not be authoritative in determining which actions were removal actions, and would be entitled to neither Chevron nor Skidmore deference. The Court noted different language in a final EPA rule that suggested that operation and maintenance activities are included within the scope of response activities. The Court also held that “removal actions” are to be broadly interpreted under CERCLA, and “encompasses the City’s ongoing obligations under the Consent Decree.” “[T]he City must maintain the vegetative cover, which protects the integrity of the geotextile mat, and thereby prevents the contaminants underneath from being released. This obligation easily falls within the definition of a ‘removal’ action to include ‘the taking of such [ ] actions as may be necessary to prevent, minimize, or mitigate damage . . . , which may otherwise result from a release or threat of release.’ 42 U.S.C. § 9601(23).”
    • The Court then held that the plaintiffs failed to plausibly plead their allegation that the City was not “diligently” conducting its removal action.
  • Doe v. Tonti Management Co., LLC, 21-30295, appeal from E.D. La.
    • Clement, J. (Owen, Clement, Engelhardt), arbitration
    • Dismissing for lack of appellate jurisdiction plaintiff’s appeal from district court’s denial of motion to reopen case to sever cost-splitting portion of parties’ arbitration agreement and impose full arbitration costs on defendant.
    • Plaintiff had brought suit against apartment management company for injunctive relief, as well as damages under the Fair Housing Act and Louisiana Equal Housing Opportunity Act, arising from management company’s denial of request to allow her to have a second pet in her apartment; the plaintiff and her boyfriend had one cat who was “solitary and standoffish,” and she wanted a second cat that was more nurturing to be her emotional support animal to assist her with her major depressive disorder and anxiety. The district court granted the management company’s motion to compel arbitration under the lease provisions, and denied plaintiff’s request to sever the cost-splitting provision and to order the management company to pay the full costs of arbitration. The district court noted two ways for the parties to resolve the cost dispute and authorized the plaintiff to re-urge the argument if the cost dispute could not be resolved.
    • The arbitration company offered to provide a free arbitrator and to waive all costs and fees, but limited to an eight-hour arbitration. The plaintiff declined this offer and moved to reopen the case, which had been administratively closed, to re-urge her argument to the district court. The district court denied her motion and held that the disputes as to costs should be addressed to the arbitrator.
    • The Court held that it did not have jurisdiction over the appeal of the denial of the motion to reopen the case because it was not a final, appealable order under § 16 of the Federal Arbitration Act. “As both parties acknowledge, Doe’s motion to re-open and sever was, in effect, nothing more than a motion to reconsider the merits of part of the district court’s order compelling arbitration. And we have no more jurisdiction to review an order declining to reconsider an order compelling arbitration than we do to review the order compelling arbitration itself.”
    • The Court also held that it did not have jurisdiction under the collateral order doctrine, and that it would not exercise mandamus jurisdiction. “This is not an extraordinary case. Doe argues that the district court misapplied the law by impermissibly delegating the parties’ cost-splitting ‘dispute’ to the arbitrator. We disagree. The district court, having recognized that MAPS waived all fees and offered eight free hours of arbitration, determined that there was no present dispute about cost splitting for it to resolve. That is because neither party knows how long the arbitration will take and, by extension, how much it will cost.”

Unpublished

  • U.S. v. Jones, 20-11063, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Majors, 20-40405, c/w 20-40656, appeal from E.D. Tex.
    • per curiam (King, Graves, Ho), criminal, restitution
    • Vacating restitution order to pay $500,500 on kidnapping and aiding and abetting conviction, and remanding for recalculation.
  • Xocop-Asijtuj v. Garland, 20-60996, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing his appeal from an order of the Immigration Judge denying his motion to reopen.
  • U.S. v. Guia, 21-10573, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Adams EMS, Inc. v. Becerra, 21-20064, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Costa), Medicare
    • Affirming DHHS’s recoupment of Medicare repayment.
  • Grant v. LeBlanc, 21-30230, appeal from E.D. La.
    • per curiam (Barksdale, Engelhardt, Oldham), qualified immunity
    • Reversing district court’s denial of qualified immunity to Louisiana Department of Public Safety and Corrections Secretary in his individual capacity on plaintiff’s over-detention claim, rendering judgment dismissing claims against Secretary in his individual capacity, and remanding for further proceedings.
  • U.S. v. James, 21-51053, appeal from W.D. Tex.
    • per curiam (King, Graves, Ho), criminal, pretrial detention
    • Affirming district court’s denial of motion to revoke magistrate judge’s pretrial detention order.
  • McCray v. Kijakazi, 21-60401, appeal from N.D. Miss.
    • per curiam (King, Graves, Ho), social security
    • Affirming the district court’s affirmance of the Commissioner’s denial of Social Security Disability Insurance benefits from the Social Security Administration.