April 13-14, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Foster v. Warden, 20-10841, appeal from N.D. Tex.
    • Southwick, J. (Dennis, Southwick, Wilson), mootness
    • Vacating dismissal on mootness grounds of former military prisoner’s suit regarding the constitutionality of term of supervised release he had been found to have violated, and remanding to district court for determination of whether post-imprisonment effect on eligibility for veterans benefits was a collateral consequence sufficient enough to avoid mootness.
  • Smith v. Heap, 21-20329, appeal from S.D. Tex.
    • Smith, J. (Smith, Costa, Wilson), sec. 1983, qualified immunity, statutory immunity
    • Reversing denial of motion to dismiss claim against constable whose officers stopped for questioning the constable of another county who had allegedly aimed a gun at a motorist and then released him. “After a 911 caller reported that Smith had aimed a gun at him on a local tollway in Harris County, Heap’s deputies stopped and questioned Smith, then released him minutes later. Smith sued Heap, who asserted qualified and statutory immunities. The stop was lawful, Heap wasn’t even there, and state law shields him from the tort claims.”
  • Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Co., 21-50544, appeal from W.D. Tex.
    • Costa, J. (Dennis, Higginson, Costa), labor law
    • Affirming district court’s injunction on suspension of six railway employees, holding that suspension arising from fistfight at union meeting that ended with the suspension of all of the union’s officers fit within the animus exception to the arbitration provision of the Railway Labor Act and therefore allowed for jurisdiction by the federal court. “Animus claims like the one at bar may be litigated in federal court because they cannot ‘be conclusively resolved’ by interpreting or applying a CBA. … Federal courts thus have jurisdiction over postcertification disputes alleging that railroad conduct motivated by antiunion animus is interfering with the employees’ ‘choice of representatives.'” The Court additionally held there was no abuse of discretion in the district court’s finding that the employees were likely to succeed on the merits of their claim that the railway company used the fistfight as a pretext to retaliate against the stance taken by the local union division against assigning extra shifts to engineers.
  • Noble Capital Fund Management, L.L.C. v. US Capital Global Investment Management, L.L.C., 21-50609, appeal from W.D. Tex.
    • Higginbotham, J. (Richman, Higginbotham, Elrod), arbitration
    • Affirming district court’s denial of motion to stay proceedings and compel arbitration in dispute regarding joint venture between two real estate investment firms.
    • Parties arbitrated their dispute pursuant to arbitration agreements, until one of the parties was unable to make a required payment to the arbitrator, at which point the arbitration organization terminated the arbitration for lack of payment. In subsequent litigation, the district court denied a motion to compel arbitration on the basis that arbitration had been had, that the termination for failure to pay was a conclusion of the arbitration of the claims. “Even though the arbitration did not reach the final merits and was instead terminated because of a party’s failure to pay its JAMS fees, the parties still exercised their contractual right to arbitrate prior to judicial resolution in accordance with the terms of their agreements.”
  • Barron v. U.S., 21-50776, appeal from W.D. Tex.
    • Elrod, J. (Stewart, Clement, Elrod), Federal Tort Claims Act, sovereign immunity
    • Reversing district court’s dismissal on basis it did not have jurisdiction under FTCA, and remanding for further proceedings.
    • Court held that the discretionary function exception to the sovereign immunity waiver of the FTCA did not apply to the duty of military facility personnel to inspect and close gates to areas of roadway subject to flooding.

Unpublished

  • Esparza v. Partington, 19-10890, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing as untimely appeal from dismissal of prisoner’s sec. 1983 suit.
  • U.S. v. Gamez, 19-50866, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Cortez-Burlingame v. Galveston County, 20-40540, appeal from S.D. Tex.
    • per curiam (Dennis, Elrod, Duncan), sec. 1983
    • Affirming dismissal for failure to raise a claim of deliberate indifference arising from prisoner’s death.
  • Boyd v. Cullom, 20-60327, appeal from S.D. Miss.
    • per curiam (Smith, Stewart, Graves), prisoner suit
    • Affirming dismissal of prisoner’s sec. 1983 claims.
  • Alvarez-Noriega v. Garland, 20-60592, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order denying his second motion to reopen.
  • Figueroa v. Garland, 20-60727, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order affirming the immigration judge’s (IJ) denial of his application for withholding of removal.
  • Maradiaga-Ochoa v. Garland, 20-61026, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Affirming BIA’s affirmance and dismissal of Honduran citizen’s appeal from IJ order denying motion to reopen removal proceeding.
  • Chowa v. Garland, 20-61182, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Cameroonian citizen’s petition for review of BIA order upholding the denial by the immigration judge (I.J.) of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Abonza, 21-10885, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Selascio v. Trejo, 21-10893, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), prisoner suit
    • Dismissing as untimely appeal from dismissal of prisoner’s sec. 1983 suit.
  • Starkey v. Collier, 21-20083, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), prisoner suit
    • Affirming dismissal of prisoner’s sec. 1983 suit.
  • U.S. v. Hernandez, 21-20393, appeal from S.D. Tex.
    • per curiam (Stewart, Clement, Ho), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Mendoza-Gomez v. Union Pacific Railroad, 21-20397, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), personal tort
    • Affirming dismissal of former employer’s person injury claims as barred under parties’ release agreement.
  • U.S. v. Ballay, 21-30190, appeal from E.D. La.
    • per curiam (Smith, Stewart, Graves), criminal, guilty plea
    • Affirming guilty plea conviction of defendant for sexual exploitation of a child.
  • Cordova v. LSU, 21-30239, appeal from W.D. La.
    • per curiam (Clement, Ho, Oldham), attorneys fees
    • Dismissing as untimely appeal from attorneys’ fee award.
  • NCC Financial, L.L.C. v. Investar Bank, N.A., 21-30291, appeal from M.D. La.
    • per curiam (Jones, Higginson, Duncan), Higginson, J., dissenting; bankruptcy
    • Affirming bankruptcy court’s disallowal of proof of claim where mortgagee never incurred any debt under mortgage agreement.
    • Judge Higginson dissented; he would have vacated and remanded for further proceedings.
  • Phillips v. Medical Device Business Services, 21-30296, appeal from W.D. La.
    • per curiam (Jolly, Smith, Engelhardt), redhibition
    • Affirming summary judgment dismissal of plaintiffs’ redhibition claim arising from reconstructive knee surgery on basis that plaintiffs failed to identify a defect in the bone cement.
  • U.S. v. Wesley, 21-30504, appeal from W.D. La.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Minor, 21-30550, appeal from W.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming 42-month sentence on conviction of escaping from custody.
  • U.S. v. Mitchell, 21-40293, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Codrington, 21-40387, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cantu, 21-40834, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia-Limon, 21-50030, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming sentence on conviction of possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and conspiracy to do the same.
  • U.S. v. Summons, 21-50205, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Guzman, 21-50275, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Corona-Leon, 21-50420, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. King, 21-50543, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 262-month sentence on conviction of possessing 50 grams or more of actual methamphetamine with the intent to distribute.
  • U.S. v. Gallardo, 21-50604, appeal from W.D. Tex.
    • per curiam (Stewart, Haynes, Ho), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • U.S. v. Bryan, 21-50753, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Nieto v. Durbin, 21-50934, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), Bivens claim
    • Dismissing as frivolous appeal from dismissal of prisoner’s Bivens claim.
  • U.S. v. Naranjo, 21-50961, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Delgadillo, 21-51037, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 12-month sentence on conviction of conspiracy to harbor aliens and harboring aliens for financial gain.
  • U.S. v. Andres-Tomas, 21-51140, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 21-month sentence on conviction of illegal reentry.
  • Garcia-Hernandez v. Garland, 21-60004, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order dismissing her appeal from the denial by the immigration judge (IJ) of her application for asylum, withholding of removal, and protection under the CAT.
  • Sanchez v. Garland, 21-60040, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying petition for review of BIA order dismissing his appeal from the denial of his application for cancellation of removal.
  • Alston v. Prairie Farms Dairy, Inc., 21-60465, appeal from N.D. Miss.
    • per curiam (Smith, Stewart, Graves), employment claim
    • Affirming dismissal of plaintiff’s employment claims.
  • U.S. v. Olguin, 21-60484, appeal from S.D. Miss.
    • per curiam (Stewart, Haynes, Ho), habeas corpus
    • Granting application for COA, vacating denial of sec. 2255 petition, and remanding for further proceedings.
  • Montgomery v. Hendrix, 21-60643, appeal from S.D. Miss.
    • per curiam (King, Costa, Ho), habeas corpus
    • Affirming denial of sec. 2241 petition.
  • Burch v. Mullin, 22-10027, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), bankruptcy
    • Dismissing for lack of jurisdiction appeal from denial of motion to recuse bankruptcy judge, and issuing $100 sanction for continued frivolous appeals.