July 19, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Gulfport Energy Corp. v. Federal Energy Regulatory Commission, 21-60017, c/w 21-60200 (petition for review of FERC orders)
    • Smith, J. (Davis, Smith, Engelhardt), bankruptcy, standing, administrative law
    • Granting petition for review of FERC orders, and vacating the orders, which sought to bind the petitioner to continue performing its gas transit contracts even if it rejected them during bankruptcy.
    • “The question is how a bankrupt debtor’s power to reject executory contracts interacts with FERC’s power to decide whether a party may change or cancel filed-rate contracts, which the agency regulates.” The Bankruptcy Code allows debtors to, with the court’s approval, reject performance of executory contracts. 11 U.S.C. § 365(a). The Natural Gas Act, as the Federal Power Act does with power companies, requires companies that seek to transport and sell natural gas in interstate commerce to file their proposed rates for approval with FERC. The Court has previously rejected FERC’s argument that a power company in bankruptcy cannot reject a filed-rate contract under the FPA, holding that such a bankruptcy rejection does not abrogate or modify the approved rate, but breaches the contract. Off. Comm. of Unsecured Creditors of Mirant Corp. v. Potomac Elec. Power Co. (In re Mirant Corp.), 378 F.3d 511, 515 (5th Cir. 2004).
    • The Court held that it has jurisdiction to hear the petitioner’s challenge to the FERC orders. It held that the petitioner had asserted a justiciable injury in “the legal effects of FERC’s orders.” “If FERC’s orders stand, Gulfport will have to choose between renouncing its legal rights under the Code or flouting FERC’s commands either by not performing the TSAs or by seeking to reject those contracts without FERC’s consent.” The Court also held that the orders are ripe for review because they present pure legal questions requiring no further factual development, even though the issue of rejection of the contracts remains before the bankruptcy court. “Only this court can review FERC’s statutory authority to issue the orders, and only this court can vacate the orders. Though the bankruptcy court could block FERC from ‘negat[ing] [Gulfport’s] rejection,’ Ultra, 28 F.4th at 638 (citation omitted), it could not do more than opine on the agency’s assertion of jurisdiction—lest it exceed its own jurisdiction.”
    • On the merits, the Court held that Mirant governs the issue, and that FERC’s orders “rested on an inexplicable misunderstanding of rejection.”

Unpublished

  • U.S. v. Rivera, 20-40828, appeal from S.D. Tex.
    • per curiam (Barksdale, Higginson, Ho), criminal, sentencing
    • Affirming 120-month sentence on conviction of conspiracy to possess, with intent to distribute, five kilograms or more of mixture or substance containing cocaine.
  • U.S. v. Lopez-Erazo, 21-40594, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Nickerson, 21-51032, appeal from W.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting summary affirmance of conviction of possession of a firearm after a felony conviction.
  • U.S. v. Arreola-Dominguez, 21-51138, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 27-month sentence on conviction of illegal reentry.
  • Quintanilla-Gonzalez v. Garland, 21-60141, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Denying Salvadoran citizens’ petition for review of BIA order affirming, without opinion, the immigration judge’s (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Lopez-Ruiz, 22-50085, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.