January 3-6, 2023, opinions

Posted on by tadbartlett

Catching up from traveling, so summaries of published opinions will not include the usual detail.

Designated for publication

  • Cargill v. Garland, 20-51016, appeal from W.D. Tex.
    • Elrod, J. (joined by Richman, Jones, Smith, Stewart, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Haynes, J. (joined by Richman, C.J.), concurring in judgment only; Ho, J. (joined by Richman, Southwick, JJ.), concurring in part and concurring in judgment); Higginson, J. (joined by Dennis, Graves, JJ.); administrative law, gun control
    • After a penal of the Court had affirmed district court’s judgment in favor of government on plaintiff’s APA challenge to ATF regulation that defined bump stocks within the definition of “machine guns” for purpose of the prohibitions of the Gun Control Act and the National Firearms Act, en banc Court REVERSED. “A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act. But even if that conclusion were incorrect, the rule of lenity would still require us to interpret the statute against imposing criminal liability.”
    • The Court held, “[T]he definition of machinegun must turn on the action (or ‘function’) of the trigger because no other actor is mentioned or implied. This conclusion is only strengthened by the fact that other definitions within the same statutory provision explicitly turn on the action of a shooter, showing that Congress knew how to write a definition that proceeds from a shooter’s perspective, rather than a mechanical one, if it had wanted to.”
    • Judge Haynes separately concurred in the judgment only “because I reluctantly conclude that the relevant statute is ambiguous such that the rule of lenity favors the citizen in this case.”
    • Judge Ho separately concurred in part and concurred in the judgment, also on the basis of the rule of lenity. “In sum, it is not enough to conclude that a criminal statute should cover a particular act. The statute must clearly and unambiguously cover the act.”
    • Judge Higginson dissented on the same basis as stated in the panel opinion (at 20 F.4th 1004), but also to “dissent from our court’s use of lenity to rewrite this statute.” He emphasized that the Supreme Court allowed for reliance on the rule of lenity only if, after considering the statute’s text, structure, history, and purpose there is still a “grievous” ambiguity that would cause a court to “simply guess” Congress’s intent. “Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity. In doing so, today’s ruling usurps Congress’s power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law.”
  • U.S. v. Grzywinski, 21-11135, appeal from N.D. Tex.
    • Duncan, J. (Higginbotham, Duncan, Engelhardt), criminal, sentencing
    • Affirming 45-year sentence on conviction of attempting to produce child pornography, where that sentence relied on an enhancement based on defendant’s prior Texas state conviction for aggravated sexual assault of a child.
  • U.S. v. Freeman, 21-11267, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Oldham), criminal, sufficiency of evidence
    • Affirming conviction for possession of a firearm by a felon, finding under the “great deference” standard that there was sufficient evidence to support the conviction.
  • Elson v. Black, 21-20349, appeal from S.D. Tex.
    • Jones, J. (Jones, Stewart, Duncan), class action, consumer fraud, breach of warranty
    • Affirming striking of class allegations and dismissal of claims for fraud, reversing dismissal of claims for breach of express warranty, and remanding for further proceedings.
    • The Court held that differences in different state laws, and the element of reliance for purposes of the misrepresentation-based claims, destroyed predominance.
    • The Court held that the fraud allegations failed to meet the requirements of Rule 9(b); but that the district court failed to apply the law of the specific jurisdiction when applying its analysis of the breach of warranty claims.
  • Petersen v. Johnson, 21-20565, appeal from S.D. Tex.
    • Wilson, J. (Higginbotham, Haynes, Wilson), § 1983
    • Affirming dismissal of § 1983 claims for false arrest, malicious prosecution, municipal liability, and negligence by decedent’s parents after he committed suicide following his arrest for online solicitation of a minor.
  • Wallace v. Performance Contractors, Inc., 21-30482, appeal from W.D. La.
    • Elrod, J. (Davis, Elrod, Haynes), Title VII, employment discrimination
    • Reversing district court’s summary judgment in favor of employer defendant on plaintiff’s claims alleging sex discrimination, sexual harassment, and retaliation, holding that plaintiff raised genuine material fact issues as to each claim, and remanding for further proceedings.
  • U.S. v. Yusuf, 21-40926, appeal from S.D. Tex.
    • Oldham, J. (Stewart, Willett, Oldham), criminal, sufficiency of evidence
    • Affirming conviction for trafficking aliens for defendant who was stopped by Border Patrol while smuggling 84 people in a trailer, holding that there was sufficient evidence in the record. on a plain error review, to support the element that the defendant knew that he was smuggling people in his trailer.
  • Amberson v. McAllen, 21-50960, appeal from W.D. Tex.
    • per curiam (Jones, Southwick, Oldham), Oldham, J., concurring in denial of rehearing; arbitration
    • Denying petition for rehearing of panel decision that underlying claim was arbitrable.
  • Shrimpers and Fishermen of the RGV v. U.S. Army Corps of Engineers, 21-60889, petition for review of order of the U.S. Army Corps of Engineers
    • King, J. (King, Duncan, Engelhardt), Clean Water Act
    • Denying petition for review of USACE order granting Clean Water Act permit for development of a natural gas pipeline and export facility, holding that the Corps approved “the least environmentally damaging practicable alternative presented before it.”
  • Bradley v. Viking Insurance Co. of Wisconsin, 21-60907, appeal from S.D. Miss.
    • Southwick, J. (Jones, Southwick, Ho), insurance
    • Affirming district court’s summary judgment for insurer, holding that uninsured motorist coverage can be voided where the insured commits a material misrepresentation by failing to name those of driving age in the household when applying for the insurance.
  • Electric Reliability Council of Texas, Inc. v. Just Energy Texas, L.P., 22-20424, appeal from S.D. Tex.
    • Engelhardt, J. (Southwick, Graves, Engelhardt), bankruptcy, Burford abstention
    • Vacating bankruptcy court’s denial of abstention and dismissal of claims in bankruptcy, arising from electricity pricing during the week-long winter storm Uri, and remanding for abstention under Burford. After analyzing the Burford factors, the Court held, “four of the five factors favor abstention. Just Energy fails to cite any caselaw where the scoreboard is this lopsided in favor of abstention, yet Burford was inapplicable.”
  • Menard v. Targa Resources, L.L.C., 22-30178, appeal from M.D. La.
    • per curiam (King, Stewart, Haynes), Louisiana Environmental Whistleblower Statute
    • Certifying to the Louisiana Supreme Court two questions regarding the Louisiana Environmental Whistleblower Statute:
      • “(1) Whether refusals to engage in illegal or environmentally damaging activities are ‘disclosures’ under the current version of the Louisiana Environmental Whistleblower Statute, La. Stat. Ann. 30:2027; and
      • (2) Whether the Louisiana Environmental Whistleblower Statute affords protection to an employee who reports to his supervisor an activity, policy, or practice of an employer which he reasonably believes is in violation of an environmental law, rule, or regulation, where reporting violations of environmental law, rules, or regulations, is a part of the employee’s normal job responsibilities.”
  • Port of Corpus Christi Authority of Nueces County v. The Port of Corpus Christi L.P., 22-40124, appeal from S.D. Tex.
    • Southwick, J. (Higginbotham, Southwick, Higginson), removal jurisdiction, federal officer jurisdiction
    • Affirming district court’s grant of remand of governmental entity’s trespass claims against private entity arising from private entity’s dredging operations in shipping channel, holding that the claims triggered neither federal officer jurisdiction nor federal question jurisdiction.

Unpublished

  • U.S. v. Hernandez-Alcantar, 19-40505, appeal from S.D. Tex.
    • per curiam (Barksdale, Higginson, Ho), criminal, sentencing
    • Affirming 150-month sentence for conviction of importing 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.
  • Arteaga v. Garland, 20-60620, petition for review of BIA order
    • per curiam (King, Higginson, Willett), immigration
    • Dismissing Salvadoran citizen’s petition for review of BIA order affirming an order of the Immigration Judge (IJ) denying his applications for cancellation of removal and withholding of removal.
  • Roe v. Johnson County, 21-10890, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), Bivens claim
    • Affirming dismissal of Bivens claims.
  • Dockery v. Texas Department of Criminal Justice, 21-20439, appeal from S.D. Tex.
    • per curiam (King, Elrod, Southwick), Title VII, employment discrimination
    • Affirming trial judgment in favor of employer on racial discrimination claims.
  • U.S. v. Garcia, 21-51065, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
    • Affirming 41-month sentence and conviction of dealing firearms without a license.
  • U.S. v. Bryant, 21-60960, appeal from N.D. Miss.
    • per curiam (Smith, Barksdale, Haynes), criminal, search and seizure
    • Affirming conviction for being a felon in possession of a firearm, upholding denial of motion to suppress evidence of firearm recovered in no-knock search.
  • U.S. v. Rodriguez-Michel, 22-10078, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Searcy v. Orchard National Title, 22-10122, appeal from N.D. Tex.
    • per curiam (Davis, Smith, Dennis), appellate jurisdiction
    • Dismissing appeal from order remanding case to state court, for lack of appellate jurisdiction.
  • Foster v. Aurzada, 22-10310, c/w 22-10318, appeal from N.D. Tex.
    • per curiam (Richman, Dennis, Ho), bankruptcy
    • Affirming ruling that bankruptcy court had jurisdiction over state case against bankruptcy trustee removed to district court, and dismissing claims.
  • U.S. v. Sanders, 22-10590, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Rogers v. Lumpkin, 22-10654, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), habeas corpus
    • Affirming denial of motion for release pending resolution of § 2254 application.
  • U.S. v. Chaves, 22-10665, appeal from N.D. Tex.
    • per curiam (Davis, Smith, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Nichols, 22-20249, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sonnier, 22-20302, appeal from S.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal, sentencing
    • Affirming 24-month sentence for stealing or reproducing post office keys and for theft of mail.
  • Williams v. Davis, 22-30181, appeal from E.D. La.
    • per curiam (Higginbotham, Duncan, Engelhardt), sovereign immunity, § 1983
    • Reversing denial of motion to dismiss § 1983 claims against state police for bystander liability arising from suppression of protest march, on Eleventh Amendment immunity grounds, and rendering judgment dismissing claims.
  • Weary v. Lumber Liquidators, Inc., 22-30370, appeal from M.D. La.
    • per curiam (Davis, Smith, Dennis), employment discrimination
    • Affirming summary judgment dismissing employment discrimination claims.
  • U.S. v. Johnson, 22-30386, appeal from W.D. La.
    • per curiam (Barksdale, Elrod, Haynes), criminal, sentencing
    • Affirming 120-month sentence on conviction of possession of a firearm by a felon.
  • Populars v. Trimac Transportation, Inc., 22-30413, appeal from M.D. La.
    • per curiam (Clement, Graves, Wilson), personal tort
    • Affirming summary judgment in favor of defendant in intentional tort claims arising from industrial accident.
  • U.S. v. Bagent, 22-30555, appeal from E.D. La.
    • per curiam (Higginbotham, Duncan, Wilson), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • U.S. v. Solis, 22-40029, c/w 22-40088, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, search and seizure
    • Affirming convictions for conspiracy to possess with the intent to distribute methamphetamine, upholding denial of motion so suppress.
  • U.S. v. Thompson, 22-40421, appeal from E.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Guajardo, 22-40511, appeal from S.D. Tex.
    • per curiam (King, Jones, Smith), criminal, sentencing
    • Vacating sentence on conviction of knowingly making, and aiding and abetting the making of, a false statement and representation in connection with the acquisition of a handgun, and remanding for resentencing.
  • U.S. v. Garcia-Gamez, 22-40525, appeal from E.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Medrano, 22-50103, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Avila-Olivares, 22-50349, appeal from W.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Sanchez v. Garland, 22-60036, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order upholding removal and denial of relief from removal.
  • Kumar v. Garland, 22-60128, petition for review of BIA order
    • per curiam (Davis, Smith, Douglas), immigration
    • Denying in part and dismissing in part Indian citizen’s petition for review of BIA order denying his past and future persecution asylum claims.
  • Johnson v. Administrative Review Board, U.S. Department of Labor, 22-60152, petition for review of DOL Administrative Review Board Decision
    • per curiam (Higginbotham, Jones, Oldham), administrative law
    • Denying petition for review of DOL ARM denying relief to plaintiff who challenged Union Pacific Railroad Company’s refusal to let him return to work.
  • Patrick v. Taylor, 22-60191, appeal from S.D. Miss.
    • per curiam (Clement, Southwick, Higginson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Mississippi state prisoner’s § 1983 claims.
  • Castro-Ortega v. Garland, 22-60233, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of her application for asylum, withholding of removal, and protection under the CAT.
  • Escobedo-Molina v. Garland, 22-60256, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Denying Mexican citizen’s petition for review of BIA order denying his motion to reopen or reconsider removal proceedings.
  • U.S. v. Thomas, 22-60367, appeal from S.D. Miss.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Dismissing appeal of 110-month sentence on conviction of being a felon in possession of a firearm.