March 13-14, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Gonzalez v. Blue Cross Blue Shield Association, 22-10062, appeal from N.D. Tex.
    • Willett, J. (Graves, Willett, Engelhardt), insurance, preemption, sovereign immunity, standing
    • Affirming dismissal of former federal employee’s claim against health insurer and federal Office of Personnel Management arising from the denial of coverage for proton therapy for cancer; district court had dismissed claims against OPM under sovereign immunity, and against Blue Cross on basis that claims were preempted by Federal Employees Health Benefits Act.
    • The Court held that sovereign immunity does not bar the plaintiff’s claim against OPM, but affirmed the dismissal of that claim on the alternative ground that the claim was foreclosed under Rule 12(b)(6). The OPM’s argument for sovereign immunity relied on its own regulatory restriction on Congress’s waiver of sovereign immunity in the FEHBA. “[J]ust as only Congress can waive an agency’s sovereign immunity, so too only Congress can withdraw or modify a waiver of immunity.” (Internal quotation marks and citation omitted). However, the Court held that there was no “health benefits claim” put at issue by the plaintiff’s complaint, as she had not identified a bill for proton therapy that was denied or for the alternative form of radiation therapy that was approved and pursuant to which she is currently cancer-free.
    • The Court also held that the plaintiff was unable to bring a claim for injunctive relief against OPM, as she lacked Article III standing because she could not demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.
    • As to the plaintiff’s state-law claims against Blue Cross, the Cour affirmed the district court’s preemption holding.
  • Newbold v. Kinder Morgan SNG Operator, L.L.C., 22-30416, appeal from W.D. La.
    • Engelhardt, J. (Wiener, Stewart, Engelhardt), personal torts, waters of the United States
    • Affirming dismissal of wrongful death and survivor claims arising from boater’s death two years after allision with submerged sign, on holding that allision occurred in non-navigable waters and that Louisiana law therefore applied.
    • The Court held that the waterway at issue was not a navigable water of the United States such that federal law would apply, rather than Louisiana law. The Court based this holding on the fact that the area at issue is only occasionally inundated by flood; and that a Corps of Engineers navigational servitude did not change the actualities of the occasional character of the inundation. The Court also held that there was insufficient evidence of navigability in fact.

Unpublished

  • Holberg v. Lumpkin, 21-70010, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), Duncan, J., dissenting; habeas corpus, ineffective assistance of counsel, Brady violation
    • Granting certificate of appealability on district court’s dismissal of habeas petitioner’s ineffective assistance of counsel and Brady claims.
    • Judge Duncan dissented from the grant of COA.
  • U.S. v. Martinez, 22-10788, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Cano v. Faust, 22-20189, appeal from S.D. Tex.
    • per curiam (Smith, Southwick, Douglas), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claims.
  • Yang v. Nobilis Health Corp., 22-20224, appeal from S.D. Tex.
    • per curiam (Stewart, Dennis, Southwick), Rule 60(b), securities law
    • Affirming denial of plaintiff’s Rule 60(b) motion that had been filed while underlying merits of securities class action dismissal were on appeal; holding that district court did have jurisdiction over Rule 60(b) motion even after the prior appeal was decided, but that the material on which Rule 60(b) motion relied would not have changed the outcome of the dismissal.
  • Ware v. AutoZoners, L.L.C., 22-20422, appeal from S.D. Tex.
    • per curiam (Jones, Willett, Douglas), Title VII, employment discrimination, Fair Labor Standards Act
    • Affirming summary judgment dismissal of plaintiff’s sex discrimination and FLSA claims.
  • Spears v. Nanaki, L.L.C., 22-30460, appeal from W.D. La.
    • per curiam (Wiener, Stewart, Engelhardt), Title VII, employment discrimination
    • Reversing dismissal of plaintiff’s employment discrimination claims and remanding for further proceedings.
  • Guzman v. Sturgis, 22-40276, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 action.
  • U.S. v. Perez, 22-40355, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 70-month sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine.
  • U.S. v. Garcia, 22-50603, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, supervised release
    • Affirming supervised release terms as part of sentence for conviction of conspiracy to possess with intent to distribute 50 grams of actual methamphetamine and possession of a firearm in furtherance of a drug trafficking crime.
  • U.S. v. McDonald, 22-60073, appeal from S.D. Miss.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming conviction and sentence for one count of conspiring to possess with intent to distribute 500 grams or more of a substance or mixture containing a detectable amount of cocaine and a mixture or substance containing a detectable amount of methamphetamine; two counts of possessing with intent to distribute a mixture of substance containing a detectable amount of cocaine; and two counts of attempting to distribute a mixture of substance containing a detectable amount of methamphetamine.
  • Ahmed v. Garland, 22-60099, petition for review of BIA order
    • per curiam (Clement, Oldham, Wilson), immigration
    • Dismissing in part and denying in part Somalian citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.
  • Avalos v. Garland, 22-60279, petition for review of BIA order
    • per curiam (Jones, Stewart, Haynes), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.
  • Moore v. Jackson Public School District, 22-60376, appeal from S.D. Miss.
    • per curiam (Wiener, Stewart, Engelhardt), Title VII
    • Affirming summary judgment dismissal of plaintiff’s retaliation claims.
  • U.S. v. Thomas, 22-60455, appeal from N.D. Miss.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 151-month sentence on conviction of distribution of cocaine.