Take the Fifth

Designated for publication

• Fakhuri v. Garland, 19-60275, petition for review of BIA order
  • Smith, J. (Smith, Costa, Wilson), immigration
  • Denying in part and dismissing in part Jordanian citizen’s (and legal permanent resident’s) petition for review of BIA order sustaining IJ’s determination that Tennessee conviction of money laundering was an “aggravated felony” supporting removal, on basis that claims are unexhausted or meritless.
  • The Court first held that the petitioner’s claims that the BIA skipped the first step in a “categorical review” of Tennessee’s money laundering statute, that the statute does not contemplate an element of “attempt,” and that he could not be removed for attempting to launder drug money when he wasn’t convicted of a drug trafficking offense were not exhausted because he had failed to present them to the BIA.
  • The Court then held that the petitioner’s other two arguments, that the money laundering statute was not divisible and that it wouldn’t be a categorical match with the generic crime of money laundering, were meritless.

• U.S. v. Aguilar-Cerda, 20-10866, appeal from N.D. Tex.
  • Higginbotham, J. (Owen, Higginbotham, Elrod); Higginbotham, J., concurring (joined by Owens, C.J.); criminal, supervised release
  • Affirming term of supervised release condition requiring that “the Defendant shall participate in a program, in or outpatient, approved by the U.S. Probation Office for treatment of narcotic, drug, or alcohol dependency, which will include testing for the detection of substance use or abuse”; finding that defendant had failed to raise any non-frivolous argument for appellate review; and granting counsel’s Anders motion to withdraw, which had been carried with the case. The Court held, on the merits, that the supervised release term was not plainly erroneous.
  • Judge Higginbotham, joined by Chief Judge Owen, separately concurred in his own majority opinion, to opine that the supervised release term would not have constituted an improper delegation, and that it would not have been erroneous even if the Court were not reviewing it under a plain error standard.

• Jiao v. Xu, 20-20106, appeal from S.D. Tex.
  • Wilson, J. (Smith, Costa, Wilson), fraud, Private Securities Litigation Reform Act, preliminary injunction, declaratory judgment
  • Affirming district court’s declaratory and injunctive relief in favor of plaintiffs in claims that managing member of LLC of which plaintiffs were members had committed various fraudulent acts arising from investments they made to the LLC for the purchase of the Crowne Plaza hotel in Houston.
  • The Court held first that it had jurisdiction to review the preliminary injunction order under 28 U.S.C. 1292(a)(1); and that it had jurisdiction to review the denial of the defendant’s motion to dismiss because the issues within it were inextricably intertwined with the issues in the review of the preliminary injunction.
  • The Court then held that the plaintiffs had standing to assert a shareholder derivative claim because Texas law allows such claims by members of a closely held LLC. The Court also held that the plaintiffs had met the heightened pleading requirements of the PSLRA.
  • The Court then held that the district court did not err in issuing the preliminary injunction because it did not abuse its discretion in finding the irreparable harm element was satisfied, where the evidence in the record supported the finding that “Plaintiffs were in imminent danger of losing the hotel’s IHG franchise and even the hotel itself.”
  • The Court also found no error in the district court’s declaratory judgment that the defendant had violated the terms of the LLC operating agreement by failing to contribute the full amount he was required to put in for his controlling membership interest. The Court then found no abuse of discretion in the district court’s order for the defendant to turn over his membership interest to the LLC.

• U.S. v. McGavitt, 20-20575, appeal from S.D. Tex.
  • Wilson, J. (Higginbotham, Stewart, Wilson), criminal, sentencing
  • Affirming district court’s imposition of concurrent sentences of life, 360 months, and 120 months of imprisonment, and concurrent 15-year terms of supervised release, on guilty-plea conviction of coercion and enticement, sexual exploitation of a child, and possession of child pornography.

• U.S. v. Rodriguez, 20-20634, appeal from S.D. Tex.
  • Higginson, J. (Southwick, Haynes, Higginson), criminal, compassionate release
  • Affirming district court’s denial of motion for reconsideration of denial of motion for compassionate release.
  • The Court held that there was no abuse of discretion in the district court’s determination that the defendant had failed to show a specific and imminent threat of infection from COVID-19 justifying his compassionate release, where there had been only seven cases of infection in the prison, there was no showing of improper infection-prevention protocols at the prison, the defendant suffered from two chronic health conditions that were medically controlled, the defendant had manifested no heart problems since a 2014 heart attack, and the defendant had only served less than half of his 168-month sentence.

• Harris v. City of Schertz, 20-50795, appeal from W.D. Tex.
  • Southwick, J. (Southwick, Haynes, Higginson), employment discrimination, Age Discrimination in Employment Act
  • Affirming district court’s summary judgment dismissal of age discrimination claims against city-employer.
  • The Court held first that the plaintiff did not waive appeal of the age discrimination claims when he only briefed his sex discrimination claims at the district court (he only appealed the dismissal of the age discrimination claims), because the district court nevertheless provided a full analysis of the age discrimination claims and those claims were adequately briefed on appeal.
  • The Court then held that the district court did not err in holding that, after the plaintiff showed a prima facie case of age discrimination, he failed to provide sufficient evidence of a but-for relationship between his age and his termination to survive summary judgment. The Court also observed that the district court may not have needed to dispense with the city’s evidence for a non-discriminatory basis for termination.

• Tango Marine, S.A. v. Elephant Group Ltd., 21-10068, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Engelhardt), jurisdiction
  • Denying petition for rehearing en banc and panel rehearing, but withdrawing original opinion and affirming district court’s judgment against the defendant because the “extent of the relief the judgment grants against the Defendants is defined by the jurisdiction asserted under Supplemental Rule B.” The Court specifically withdrew the portion of its prior panel opinion interpreting “Great Prize, S.A. v. Mariner Shipping Party, Ltd., 967 F.2d157, 159 (5th Cir. 1992). See id. at 814. What Great Prize means can be left for an appeal in which its meaning matters. It does not in this case.”

• Mitchell v. Advanced HCS, L.L.C., 21-10477, appeal from N.D. Tex.
  • Owen, C.J. (Owen, Clement, Engelhardt), jurisdiction, removal jurisdiction, preemption, federal officer jurisdiction
  • Affirming district court’s order to remand to state court action asserting state-law claims against nursing home operator for the COVID-19-related death of the plaintiff’s mother, which was removed under complete preemption theory under the Public Readiness and Emergency Preparedness Act (“PREP Act”), under federal officer jurisdiction, and under the Grable framework.
  • The Court held that the PREP Act did not completely preempt state-law causes of action. “[T]he PREP Act does not create a general cause of action that would preempt state-law negligence claims. Nor does it contain a specific jurisdictional grant to the federal courts to adjudicate any such cause of action.”
  • The Court held that Grable was not implicated because the federal preemption defense, as an affirmative defense, may not constitute the “significant federal issue” required as one of the elements of Grable-based removal.
  • The Court held that federal officer removal was not implicated because the defendant cannot show that it was “acting under” the direction of a federal officer in engaging in the conduct at the basis of the plaintiff’s claims. “[D]esignation of nearly the entire private economy as critical infrastructure cannot create the kind of relationship required for a private entity to utilize the federal officer removal statute.” Additionally, the government’s publication of “permissive guidance, … best practices, helpful suggestions, or a combination thereof,” did not arise to the level of mandate required to be the basis of an “acting under” defense. The Court also rejected the defendant’s suggestion of a “regulation plus” theory of federal officer removal.

• Abbt v. City of Houston, 21-20085, appeal from S.D. Tex.
  • King, J. (King, Graves, Ho), Ho, J., concurring; employment discrimination, sexual harassment, Title VII
  • Affirming the district court’s summary judgment dismissal of former firefighter’s retaliation claim, but reversing summary judgment dismissing her sexual harassment claims based on senior firefighter’s repeated viewing of intimate video featuring the plaintiff, and remanding for further proceedings.
  • The Court held that the plaintiff had presented a case sufficient to survive summary judgment under Title VII’s hostile work environment rubric: “It is undisputed that Abbt, a woman, is a member of a protected class. It is also undisputed that Abbt experienced unwelcome harassment—Abbt did not send Barrientes the video and did not give either Barrientes or Elliott permission to watch it. It is important to note that the unwelcome harassment was not limited to the theft of the video. Instead, the harassment includes the affirmative decision by Barrientes and Elliott to repeatedly view Abbt’s intimate video without her permission. Abbt has presented evidence that both Barrientes and Elliott watched the video at work, watched it multiple times, and watched it with the full knowledge that it depicted their female subordinate nude. The full framing of the harassment at issue in this case includes the repeated viewing of the video, not just its theft. Given that framing, the harassment (the repeated viewing of the video) was based on sex, and therefore was based on Abbt’s status as a member of a protected class. The textbook example of harassment stems from actions across genders based on sexual desire. … The Supreme Court has made clear that a sexual motivation is not necessary to find sexual harassment; but even though such a motivation is not necessary, it is still clearly sufficient. And a jury could surely find that the decision of two men to repeatedly watch a nude video of their female coworker was motivated by the fact that she was a woman. The harassment was based on sex.”
  • Additionally, the Court held, “[A] reasonable person could consider the repeated viewing of her intimate, nude video by her coworkers to be sufficiently severe to constitute sexual harassment. Such invasive and violative conduct goes well beyond a mere offensive utterance and rendering it actionable under Title VII does not risk turning the statute into a general civility code.” (Internal quotation marks and citation omitted). The Court also held that the plaintiff’s subjective reaction to the harassment did not need to be contemporaneous with the harassing conduct–when she learned about it many years after the supervisors had obtained the video and begun repeatedly watching it–where it nevertheless affected the terms and conditions of her employment once she learned of it.
  • The Court held that the dismissal of the plaintiff’s retaliation claims was justified by the city’s non-retaliatory reasons for not offering the plaintiff paid leave upon her diagnosis of PTSD and the city attorney’s phone call to the Fire Department’s psychologist to stop treating the plaintiff (which the psychologist did not accede to).
  • Judge Ho concurred. He noted that “[t]he theoretical challenge in this case is the subjective element. Because a plaintiff cannot in fact perceive conduct as hostile if they are unaware of it. … But notably, the City conceded at oral argument that Abbt’s work environment was subjectively hostile. And rightly so. That’s because Abbt was still working at the Department when she learned what her superiors had been doing behind her back. It is a curious consequence of Title VII sexual harassment doctrine that her hostile work environment claim would not have been viable had she learned of the misconduct only after she left the Department. But it’s one that Abbt’s counsel acknowledges, and the court today affirms. Because then, the conditions of her employment would not have been altered.” (Internal quotation marks, alterations, and citation omitted).

• Willey v. Harris County District Attorney, 21-20138, appeal from S.D. Tex.
  • Smith, J. (Jones, Smith, Haynes), Jones, J., concurring; First Amendment
  • Affirming denial of preliminary injunction to plaintiff who sought to enjoin district attorney from anti-barratry law against plaintiff who wanted to solicit solicit legal work from already-represented criminal defendants, on basis that plaintiff was unlikely to succeed on First Amendment claims.
  • “Willey is motivated by his belief that appointed criminal defense attorneys in Harris County are pervasively inadequate, largely because they are overburdened. Willey planned to help by representing affected indigent defendants pro bono, but solely to challenge their existing attorneys’ adequacy.”
  • The Court held that “the state’s interest in preserving attorney-client relationships sustains application of the anti-barratry statute to Willey’s conduct at this preliminary stage,” even under a strict-scrutiny analysis. The Court held that preventing confusion as to the represented defendants’ relationship with their court-appointed counsel was a compelling state interest. “A defendant who thinks someone else represents him may not provide his attorney of record with critical information about the case. That can lead to that attorney’s failure to pursue evidence or timely raise a key defense. Both can constitute ineffective assistance.”
  • The Court then held that the anti-barratry law was sufficiently narrowly tailored, because it need not also prohibit criticism of a represented defendant’s appointed counsel to not be under-inclusive, as the compelling state interest is against confusion as to the attorney-client relationship and not against criticism of the client’s counsel. The plaintiff’s attempts to seek representation were themselves confusing acts to the potential clients, where mere criticism of the opposing counsel would not be.
  • Judge Jones concurred. She emphasized that this was an as-applied challenge, and that the particular facts of Willey’s attempts to represent the indigent defendants were sufficiently confusing as to justify the application of the anti-barratry law to him.

• West Wilmington Oil Field Claimants v. Nabors Corporate Services, Inc., 21-20394, appeal from S.D. Tex.
  • Clement, J. (Owen, Clement, Engelhardt), bankruptcy
  • Reversing district court, which had reversed the bankruptcy court, and reinstating bankruptcy court’s judgment that 67 claimants in the bankruptcy of a well services company had failed to show excusable neglect for the untimely filing of their proofs of claim.

• Allen v. Vertafore, Inc., 21-20404, appeal from S.D. Tex.
  • Higginson, J. (Southwick, Haynes, Higginson), data theft
  • Affirming 12(b)(6) dismissal of claims by Texas driver’s license holders against defendant under the Driver’s Privacy Protection Act after unauthorized access to personal information stored on defendant’s unsecured external servers.
  • The Court held, “[T]he only facts alleged in Plaintiffs’ complaint are that Vertafore stored personal information on ‘unsecured external servers’ and that unauthorized users accessed that information. Without more, these facts do not plausibly state a ‘disclosure’ consistent with the plain meaning of that word. Nothing about the words ‘unsecured’ or ‘external’ implies exposure to public view, and the mere fact that unauthorized users managed to access the information does not imply that Vertafore granted or facilitated that access. After all, we would hardly say that personal information was ‘disclosed’ if it was kept in hard copy and the papers were stolen out of an unlocked, but private, storage facility.”

• U.S. v. Jackson, 21-40322, appeal from E.D. Tex.
  • Smith, J. (Smith, Costa, Wilson), criminal, First Step Act
  • Vacating denial of motion for compassionate release under the First Step Act, and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).

• Templeton v. Jarmillo, 21-50299, appeal from W.D. Tex.
  • Southwick, J. (Southwick, Haynes, Higginson), excessive force, qualified immunity
  • Affirming qualified immunity dismissal of excessive force claims against officers who responded and conducted a welfare check on the plaintiff in his home.
  • The Court held that the plaintiff had not waived an argument based on a case that he had argued applied to his excessive force claim for the first time in a motion to alter or amend judgment, because the citing of new authority in support of an argument already asserted is not a “new” argument; “if the parties cite new, relevant authority on an issue already before the court, it may be considered.” The Court nevertheless affirmed the district court on the basis that the authority cited by the plaintiff was an outlier, and that the clearly established Fifth Circuit precedent on tight handcuffing was contrary to the plaintiff’s claims. “Tight handcuffing alone, even where a detainee sustains minor injuries, does not present an excessive force claim. At least one point being made by the district court was that regardless of what a single precedent states, that opinion cannot clearly establish law if there is considerable contrary authority.” (Internal citations omitted).

• U.S. v. Perez, 21-50310, appeal from W.D. Tex.
  • Owen, C.J. (Owen, Higginbotham, Elrod), criminal, First Step Act
  • Remanding denial of motion for sentence reduction under the First Step Act, for the district court to provide sufficient explanation for its denial such that the Court could review the district court’s exercise of discretion.

• NetChoice, L.L.C. v. Paxton, 21-51178, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Willett), preliminary injunction
  • Ordering opposed motion to stay preliminary injunction to be carried with the case, and expediting to next available oral argument panel. District court issued preliminary injunction of Texas HB 20, which purports to prohibit viewpoint-censorship of conservative views on large social media platforms.

Unpublished

• U.S. v. Hawkins, 20-30207, appeal from M.D. La.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Berry v. Wells Fargo Bank, N.A., 20-30670, c/w 21-30060, appeal from M.D. La.
  • per curiam (Southwick, Haynes, Higginson), foreclosure
  • Affirming dismissal of foreclosure-related claims.

• Stanton v. Jarvis Christian College, 20-40581, appeal from E.D. Tex.
  • per curiam (Owen, Clement, Higginson), Family and Medical Leave Act
  • Affirming district court’s denial of college’s Rule 59 motion after jury verdict in favor of plaintiff on her FMLA claims.

• U.S. v. McFadden, 20-40801, appeal from E.D. Tex.
  • per curiam (Wiener, Graves, Duncan), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Thoele v. Collier, 20-50666, appeal from W.D. Tex.
  • per curiam (Smith, Costa, Wilson), prisoner suit
  • Affirming dismissal of prisoner’s COVID-19-related suit against prison officials for failure to exhaust administrative remedies.

• U.S. v. Jackson, 20-50922, appeal from W.D. Tex.
  • per curiam (Jones, Southwick, Engelhardt), criminal, supervised release
  • Vacating in part sentence of defendant and remanding to provide for written conditions of supervised release that comport with the orally pronounced judgment.

• Zamarron v. Garland, 20-60833, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Denying Mexican citizen’s petition for review of BIA order denying his motion to reopen on grounds of ineffective assistance of counsel.

• U.S. v. Hammonds, 21-10107, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
  • Dismissing appeal of denial of motion for compassionate release, on basis of untimely notice of appeal.

• De Los Santos v. Bosworth, 21-10323, appeal from N.D. Tex.
  • per curiam (Smith, Costa, Wilson), § 1983
  • Affirming dismissal of § 1983 claims by lawyers who were stricken from the roster of lawyers for appointment of indigent representation.

• U.S. v. Pena-Aleman, 21-10485, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Dunsmore v. Kenyon, 21-10496, appeal from N.D. Tex.
  • per curiam (Southwick, Graves, Costa), prisoner suit
  • Dismissing as frivolous appeal from dismissal of § 1983 suit.

• U.S. v. Smith, 21-10674, appeal from N.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
  • Affirming conviction and sentence for possession with intent to distribute methamphetamine.

• U.S. v. Perez, 21-10720, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Reddick v. Medtronic, Inc., 21-30169, appeal from E.D. La.
  • per curiam (Owen, Higginbotham, Elrod), product liability
  • Affirming dismissal of product liability claims.

• Price v. International Paper Co., 21-30220, appeal from W.D. La.
  • per curiam (Jones, Haynes, Costa), Family and Medical Leave Act
  • Affirming in part and reversing in part dismissal of plaintiff’s FMLA claims, and remanding for further proceedings.

• Tunstall v. Daigle, 21-30510, appeal from E.D. La.
  • per curiam (Owen, Higginbotham, Elrod), § 1983
  • Affirming dismissal of plaintiff’s § 1983 claims arising from child support enforcement action, on basis of lack of jurisdiction for claim brought against defendant in official capacity and on basis of failure to state a claim against the defendant in her individual capacity.

• U.S. v. Cardenas-Mendoza, 21-40663, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Lee v. U.S., 21-50149, appeal from W.D. Tex.
  • per curiam (Owen, Higginbotham, Elrod), Federal Tort Claims Act
  • Affirming district court’s dismissal of FTCA claim on basis of lack of evidence of requisite causation.

• U.S. v. Dominguez-Mendoza, 21-50502, appeal from W.D. Tex.
  • per curiam (Southwick, Haynes, Higginson), criminal, sentencing
  • Affirming sentence on conviction for illegal reentry.

• U.S. v. Morales-Augustin, 21-50624, c/w 21-50625, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
  • Granting summary affirmance of sentences on conviction of illegal reentry and revocation of supervised release.

• U.S. v. Salgado-Castellano, 21-51015, c/w 21-51028, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, sentencing
  • Affirming sentences on convictions of illegal reentry and revocation of supervised release.