Designated for publication
- Oklahoma Firefighters Pension and Retirement System v. Six Flags Entertainment Corp., 21-10865, appeal from N.D. Tex.
- Southwick, J. (Southwick, Haynes, Higginson), securities law
- Reversing dismissal of securities claims (specifically, violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934) by pension plan investor against amusement park corporation based on alleged material misrepresentations and omissions regarding development of amusement parks in China, and remanding for further proceedings.
- Because the complaint was based in large part on facts divulged from a confidential source, the District Court had “generally” discounted his allegations, and “significantly” discounted his allegations about the financial health of the amusement park company’s Chinese partner. The Court of Appeals recognized that, under the PSLRA heightened pleading standard, the process of weighing the strength of the plaintiff’s favored inference against other possible inferences “is obstructed when the witness is anonymous, so courts must apply a discount to confidential witness allegations”; but then held, “Discount does not mean unfettered discretion to disregard.” Because the complaint provided particular detail about the person who was the confidential source and about their position relative to the facts being alleged, there was “reason to credit the informant’s reliability.”
- As to the alleged material misrepresentations about construction progress and projected opening dates of the Chinese amusement parks, the Court held that some were mixed present/prospective statements not entitled to PSLRA safe harbor protection. The Court held that others, while purely prospective, did not contain sufficient cautionary language to qualify for safe harbor protection.
- The Court then disagreed with the district court’s conclusion that the complaint’s allegations about the material misrepresentations lacked the requisite particularity and rested only on conclusory statements by the confidential informant. The Court noted that many of the defendant’s arguments “are about factual merits, not about plausibility of pleadings.”
- As to scienter, the Court held that the forward-looking statements were held to a higher, actual knowledge, standard. The Court examined allegations of the defendant’s motive to make misleading statements, along with other allegations, to find that “[t]he collective weight of these scienter allegations is sufficient to support an inference that Defendants has ‘actual knowledge’ their 2018 statements were misleading.”
- The Court also held that statements of projected park opening dates were specific enough to not be mere “corporate optimism” or inactionable puffery.
- U.S. v. Wright, 21-40849, appeal from S.D. Tex.
- Barksdale, J. (Smith, Barksdale, Haynes), criminal, search and seizure
- Remanding to the district court to prepare written findings of fact on the record developed at the suppression hearing as to whether reasonable suspicion existed at an earlier point in time than that which the district court analyzed in its judgment denying the defendant’s motion to suppress; and otherwise retaining jurisdiction to decide appeal after entry of new findings of fact and conclusions of law.
- “At issue is whether Jacob Boone Wright was seized in violation of the Fourth Amendment when an officer, with emergency lights engaged, pulled behind Wright’s parked vehicle, and he did not attempt to flee or terminate the encounter, but failed to comply fully with the officer’s commands. Because the officer’s actions communicated clearly to Wright he was not free to leave, and because he submitted to the officer’s show of authority, we hold a Fourth Amendment seizure occurred at the time the officer activated her emergency lights and almost simultaneously ordered him to stay in his car, which he continued exiting but stood beside.”
- Hudson v. Lincare, Inc., 22-50149, appeal from W.D. Tex.
- Smith, J. (Smith, Barksdale, Haynes), Title VII, employment discrimination
- Affirming summary judgment in favor of employer, holding, “Although the parties disagree about the nature and frequency of Hudson’s harassment, there is no genuine dispute that Lincare’s response was prompt, reasonable, and effective. Nor could a reasonable jury find that Lincare retaliated against Hudson based on her complaints.”
- In re Palacios, 22-50792, appeal from W.D. Tex.
- per curiam (Higginbotham, Jones, Oldham), habeas corpus
- Denying motion to file a second successive § 2254 petition on the basis of newly discovered evidence that the state prosecutor who opposed his state habeas proceeding also was employed by the state district court judge to draft the findings of fact and conclusions of law for those proceedings. The Court held that the petitioner failed to show that, but for this collusion, no reasonable factfinder would have found him guilty of the underlying offenses.
- In re Louisiana Public Service Commission, 22-60458, on petition for writ of mandamus to FERC
- Higginbotham, J. (Higginbotham, Duncan, Wilson), mandamus
- Ordering FERC to provide the Court within 21 days “a meaningful explanation for the length of time the Commission takes for final action in Section 206 complaint proceedings, including those at issue here [which have been pending for four to six years].”
- Wages and White Lion Investments, L.L.C. v. Food & Drug Administration, 21-60766, c/w 21-60800, petitions for review from order of the FDA
- per curiam (en banc Court), administrative law
- Ordering en banc rehearing of July 18, 2022, panel decision denying e-cigarette marketers’ petitions for review of FDA marketing denial orders.
Unpublished
- Canales v. Garland, 19-60827, petition for review of BIA order
- Jolly, J. (Jolly, Dennis, Higginson), immigration
- Granting petition, and vacating BIA denial of motion to reopen as untimely, remanding for BIA determination of equitable tolling.
- U.S. v. Wallace, 21-40256, appeal from S.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Providence Title Co. v. Fleming, 21-40578, appeal from E.D. Tex.
- per curiam (King, Duncan, Engelhardt), employment, injunctive relief
- Affirming preliminary injunction enjoining former employee from employment in any capacity by competitor of plaintiff pending resolution of case.
- O’Connor v. Wal-Mart Stores Texas, L.L.C., 21-40609, appeal from S.D. Tex.
- per curiam (Higginbotham, Dennis, Graves), personal tort
- Reversing summary judgment in favor of defendant in slip-and-fall premises liability case, and remanding for further proceedings.
- U.S. v. Naranjo, 21-50726, appeal from W.D. Tex.
- per curiam (Richman, Dennis, Ho), criminal, sufficiency of evidence, Sixth Amendment
- Affirming conviction of transportation of, and conspiracy to transport, illegal aliens, finding sufficient evidence on the record to support the conviction and holding that any error in admission of viseo recording of interview with law enforcement was harmless error.
- Enriquez v. Garland, 21-60837, petition for review of BIA order
- per curiam (Wiener, Elrod, Engelhardt), immigration
- Dismissing Mexican citizen’s petition for review of BIA order dismissing appeal of IJ decision denying motion for cancellation of removal.
- U.S. v. Kelly, 22-10300, appeal from N.D. Tex.
- per curiam (King, Higginson, Willett), criminal, sentencing
- Affirming 100-month sentence on conviction of stealing a firearm from the business inventory of a federally licensed dealer.
- Ellis v. U.S., 22-10729, appeal from N.D. Tex.
- per curiam (Elrod, Graves, Ho), prisoner suit
- Dismissing as frivolous appeal from dismissal of § 1983 claims.
- U.S. v. Mathis, 22-40001, appeal from E.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal
- Affirming convictions for possession with intent to distribute cocaine.
- Ayati-Ghaffari v. JP Morgan Chase Bank, N.A., 22-40172, appeal from E.D. Tex.
- per curiam (Higginbotham, Duncan, Wilson), bankruptcy
- Dismissing as frivolous appeal from bankruptcy court rulings that claimant’s claims were barred by res judicata.
- Schwarzer v. Squyres, 22-40256, appeal from E.D. Tex.
- per curiam (Higginbotham, Graves, Ho), prisoner suit
- Affirming dismissal of Texas state prisoner’s § 1983 suit.
- U.S. v. Santizo-Escobedo, 22-50101, appeal from W.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal, sentencing
- Affirming 90-month sentence on conviction of assaulting a federal officer with a dangerous weapon.
- U.S. v. Rodriguez-Silva, 22-50223, appeal from W.D. Tex.
- per curiam (Stewart, Duncan, Wilson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Osorio-Granados, 22-50355, appeal from W.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
- Affirming conviction and sentence for illegal reentry.
- U.S. v. Salazar-Hernandez, 22-50734, appeal from W.D. Tex.
- per curiam (Jones, Haynes, Oldham), criminal, sentencing
- Affirming conviction and sentence for illegal reentry.
- U.S. v. Valles, 19-50343, appeal from W.D. Tex.
- per curiam (Richman, Jolly, Dennis), Dennis, J., dissenting; habeas corpus
- Affirming denial of § 2255 petition on ineffective assistance of counsel claims.
- Judge Dennis dissented. “The majority, like the district court below,1 fails to heed § 2255(b)’s command to review ‘the motion and files and records of the case,’ instead deciding whether Valles’s has made a sufficient case for relief based on the assertions in her pro se motion alone. Had the majority reviewed the record, it could not conclude with the certainty required to deny an evidentiary hearing that Valles is not entitled to relief. Because I would vacate and remand for an evidentiary hearing, I dissent.”
- U.S. v. Rascon-Hernandez, 20-50114, appeal from W.D. Tex.
- per curiam (Jolly, Jones, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Ortuno-Leon, 21-11280, appeal from N.D. Tex.
- per curiam (Smith, Southwick, Douglas), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Miranda-Cruz v. Garland, 21-60065, petition for review of BIA order
- per curiam (Higginbotham, Duncan, Engelhardt), immigration
- Denying Nicaraguan citizens’ petition for review of BIA order adopting IJ’s ruling that motion to reopen was untimely and not subject to equitable tolling.
- Pollard v. Campbell, 21-60829, appeal from N.D. Miss.
- per curiam (Stewart, Dennis, Higginson), § 1983, qualified immunity
- Affirming qualified immunity summary judgment dismissing unlawful detention and excessive force claims, but vacating qualified immunity summary judgment dismissing warrantless-entry claims, and remanding for further proceedings.
- U.S. v. Abreu, 21-60861, appeal from S.D. Miss.
- per curiam (Higginbotham, Southwick, Higginson), criminal, sentencing
- Affirming conviction and sentence for conspiring to possess with intent to distribute five kilograms or more of cocaine and of attempting to possess with intent to distribute 500 grams or more of cocaine.
- U.S. v. Applegate, 22-10626, appeal from N.D. Tex.
- per curiam (Smith, Southwick, Douglas), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Williams, 22-40185, appeal from E.D. Tex.
- per curiam (Smith, Southwick, Douglas), criminal, sentencing
- Dismissing appeal of 180-month sentence on guilty plea conviction of conspiracy to commit wire fraud, on basis of appeal waiver in plea agreement.
- Foster v. Jackson, 22-40251, appeal from E.D. Tex.
- per curiam (King, Jones, Smith), prisoner suit
- Dismissing for lack of appellate jurisdiction appeal from denial of preliminary injunctive relief in Texas state prisoner’s § 1983 action.
- U.S. v. Serrato-Cortez, 22-40269, appeal from S.D. Tex.
- per curiam (Jones, Haynes, Oldham), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Loya-Ibarra, 22-40454, appeal from E.D. Tex.
- per curiam (Higginbotham, Duncan, Wilson), criminal, compassionate release
- Dismissing as frivolous appeal from denial of motion for compassionate release.
- Diaz v. Garland, 22-60278, petition for review of BIA order
- per curiam (Barksdale, Higginson, Ho), immigration
- Dismissing in part and denying in part Mexican citizen’s petition for review of BIA denial of motion to reopen.
- Knight v. Kijakazi, 22-60539, appeal from N.D. Miss.
- per curiam (Davis, Smith, Douglas), social security
- Affirming district court’s order affirming commissioner’s denial of disability insurance benefits.
- Miller v. Kijakazi, 22-60541, appeal from S.D. Miss.
- per curiam (Davis, Duncan, Engelhardt), social security
- Affirming district court’s affirmance of commissioner’s denial of disability benefits.
Take the Fifth 