October 26-28, opinions

Posted on by tadbartlett

Designated for publication

  • Wearry v. Foster, 20-30406, appeal from M.D. La.
    • per curiam (Richman, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Ho, Engelhardt, Oldham, Wilson); Ho, J., concurring in denial of rehearing; Jones, J., dissenting from denial of rehearing (joined by Smith, Duncan, JJ.); absolute immunity
    • Denying rehearing en banc on a 7-9 vote, Judges Richman, Jones, Smith, Southwick, Duncan, Oldham, and Wilson voting for rehearing; and Judges Stewart, Dennis, Elrod, Haynes, Graves, Higginson, Willett, Ho, and Engelhardt voting against rehearing; and leaving in place panel opinion that affirmed the district court’s denial of absolute prosecutorial immunity to district attorney and sheriff’s detective defendants arising from § 1983 claims that they deprived plaintiff of due process and a fair trial after they fabricated evidence and coerced a juvenile to adopt the false narrative that they had concocted in order to convict plaintiff of capital murder.
    • Judge Ho concurred in the denial of rehearing, although he had issued a dubitante opinion from the original panel opinion. “[D]eclining en banc rehearing here is consistent with the conceptual framework I’ve previously set forth for cases involving qualified immunity for public officials: When public officials are forced to make split-second, life-and-death decisions in a good-faith effort to save innocent lives, they deserve some measure of deference. By contrast, when public officials make the deliberate and considered decision to trample on a citizen’s constitutional rights, they deserve to be held accountable.”
    • Judge Jones dissented from the denial of rehearing. “My emphasis on the goal of immunity is not a defense of deplorable and unethical prosecutorial conduct. But we must not let a bad case make bad law.”
  • Villarreal v. City of Laredo, 20-40359, appeal from S.D. Tex.
    • per curiam (Richman, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson), qualified immunity
    • Ordering rehearing en banc of panel decision that affirmed in part, reversed in part, and remanded from judgment dismissing on qualified immunity grounds journalist’s § 1983 claim against city, police officers, prosecutors, and county alleging a pattern of harassment and retaliation, culminating in arrest, in violation of First, Fourth, and Fourteenth Amendment rights.
  • Central Crude, Inc. v. Liberty Mutual Insurance Co., 21-30707, appeal from W.D. La.
    • Davis, J. (Davis, Dennis, Higginson), insurance
    • Affirming district court’s judgment that “total pollution exclusion endorsement” to CGL insurance policy precluded coverage for plaintiff’s claim for costs incurred in remediating property and in defending against damage claim by pipeline company arising from leak from either plaintiff’s pipelines or Chevron wells on same property.
    • The Court held, “Neither the CGL policy nor Doerr requires identification of the party at fault for the oil spill in determining whether the total pollution exclusion applies here. The CGL policy’s total pollution exclusion broadly precludes coverage for bodily injury or property damage that ‘would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time.’ The provision requires a dispersal of pollutants but makes no requirement that the party responsible for the dispersal be determined.”
  • In re: Levy, 22-30622, on petition for writ of mandamus to E.D. La.
    • per curiam (King, Jones, Smith), removal, mandamus
    • Denying without prejudice writ of mandamus to order district court to remand case to state court, “[c]onfident that the court will carry out this directive” to dismiss for lack of subject-matter jurisdiction where non-diverse defendant had attempted a snap removal prior to the diverse defendant being served with the state court petition.
  • Texas State LULAC v. Elfant, 22-50690, appeal from W.D. Tex.
    • Duncan, J. (Clement, Duncan, Wilson), election law, standing
    • Reversing district court’s summary judgment in favor of plaintiff voter registration organizations in challenge of Texas’s new voter residency laws, on basis that plaintiffs lack standing, and rendering judgment dismissing plaintiff’s suit without reaching merits of summary judgment.
    • The Court held that the evidence in the record failed to link the plaintiffs’ increased expenditures for voter education efforts to Texas’s S.B. 1111, because the plaintiff representatives’ testimony “attributed their diversion of resources, not to S.B. 1111 specifically, but to a broader group of election-related laws enacted in Texas and other states.” The Court also held that the plaintiffs had no injury to their First Amendment rights to engage in voter registration and advising; “[w]hile Plaintiffs may have a constitutional interest in conducting voter registration drives, they have not shown under prong two that this conduct is ‘arguably proscribed’ by S.B. 1111.”

Unpublished

  • Finley v. Kijakazi, 21-10751, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), social security
    • Affirming denial of disability benefits.
  • Collins v. D.R. Horton-Texas Ltd., 21-20125, appeal from S.D. Tex.
    • per curiam (Davis, Dennis, Higginson), res judicata
    • Affirming dismissal of property-ownership claim on basis of res judicata.
  • U.S. v. Merritt, 21-30730, c/w 21-30732, appeal from W.D. La.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing, sufficiency of evidence
    • Affirming convictions and 600-month sentence for possession of a firearm by a convicted felon, kidnapping, interstate domestic violence, and possession of methamphetamine with intent to distribute.
  • U.S. v. Smith, 21-51019, appeal from W.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), criminal, sentencing
    • Affirming 60-month sentence on conviction of importation of 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.
  • Hudson Specialty Insurance Co. v. Talex Enterprises, L.L.C., 21-60794, appeal from S.D. Miss.
    • per curiam (Graves, Willett, Engelhardt), insurance
    • Affirming in part, reversing in part, and remanding for further proceedings on dispute over insurance coverage for expenses in stabilizing partially collapsed building.
  • U.S. v. Fedison, 22-30128, appeal from E.D. La.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Ross v. Kijakazi, 22-30262, appeal from M.D. La.
    • per curiam (Clement, Southwick, Engelhardt), social security
    • Affirming denial of disability benefits.
  • Adams v. Beusch, 22-40054, appeal from E.D. Tex.
    • per curiam (Stewart, Dennis, Willett), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas prisoner’s § 1983 suit.
  • U.S. v. Sanchez-Chavez, 22-40083, appeal from E.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Cadena, 22-40176, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, guilty plea
    • Affirming conviction and 235-month sentence for conspiracy to possess with the intent to distribute 50 grams or more of methamphetamine, upholding denial of motion to withdraw guilty plea.
  • U.S. v. Cobos, 22-40262, appeal from E.D. Tex.
    • per curiam (Jolly, Oldham, Wilson), criminal, sentencing
    • Affirming 183-month sentence on conviction of conspiracy to possess with intent to distribute 50 grams of more of methamphetamine and 5 kilograms or more of cocaine.
  • U.S. v. Arguelles, 22-50067, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Francisco-Francisco, 22-50373, c/w 22-50377, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • Lowe v. Commissioner of Internal Revenue, 22-60204, appeal from U.S. Tax Court
    • Wiener, J. (Wiener, Elrod, Engelhardt), tax, sanctions
    • Affirming decision of Tax Court rejecting plaintiff’s arguments that he should be assessed with $0 tax liability, and sanctioning plaintiff $8000 for frivolous appeal.