March 27, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Harrison County v. U.S. Army Corps of Engineers, 21-60897, appeal from S.D. Miss.
    • Engelhardt, J. (Richman, Ho, Engelhardt), National Environmental Policy Act, sovereign immunity
    • Affirming summary judgment in favor of Corps of Engineers on plaintiffs’ claims that Corps should be compelled to prepare a supplemental environmental impact statement pursuant to NEPA to increase usage of the Bonnet Carre Spillway, which summary judgment dismissed claims on basis that plaintiffs could not avail themselves of the federal government’s waiver of sovereign immunity where a federal agency failed to comply with a discrete duty to act.
    • As the Court analyzed, “At bottom, this case presents just one legal question—namely, do NEPA and its regulatory progeny obligate the Corps to prepare a supplemental EIS as the plaintiffs seek to compel under APA § 706(1)? That question, in turn, hinges on a single factual question—namely, does ‘major Federal action’ remain outstanding to necessitate the Corps’ preparation of a supplemental EIS under applicable laws and regulations? As we explain below, the answer to both questions is no, and that itself is dispositive, for without the jurisdictional hook supplied by the APA’s narrow waiver of sovereign immunity, there is no basis for jurisdiction in this suit against a nonconsenting federal agency.”
    • The Court held that the decision to open the Spillway is not a “major federal action” requiring a SEIS: “[S]ignificant new circumstances alone do not necessarily obligate an agency to prepare a supplemental EIS, no matter how great their influence on the environmental concerns NEPA was enacted to address. To the contrary, the Act and regulations require that significant new circumstances have a bearing on federal actions still being considered. The Corps’ continued operation of the Spillway under long-established plans is no such thing.”
    • Further, the Court found that the changed environmental conditions are to blame for the plaintiffs’ injuries, not the Corps’ decision to open the Spillway: “What is changed in this case is the reality of the conditions in which the Corps must operate the Spillway. In this regard, however, the true culprit for the plaintiffs’ environmental misfortunes is not the Corps or the Spillway, but the environment itself. Regardless of cause, the increased operation of the Spillway that aggrieves the plaintiffs and harms the Mississippi Sound is traceable to the fact that the Spillway must now be used more often, not that it must now be used in defiance of its original operational plan. New plans by an agency require a supplemental EIS; new circumstances do not.”

Unpublished

  • Johnson v. Tyson Foods, Inc., 22-10171, appeal from N.D. Tex.
    • per curiam (Richman, Stewart, Haynes), COVID-19, personal tort
    • Affirming dismissal of negligence claims by Tyson employees against Tyson after they contracted COVID-19, on basis of Texas’s Pandemic Liability Protection Act.
  • Gabriel v. Outlaw, 22-10314, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), RICO, jurisdiction, Rooker-Feldman Doctrine
    • Affirming, as modified, judgment dismissing plaintiffs’ RICO claims.
  • U.S. v. Rodriguez, 22-10638, appeal from N.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Thackerson, 22-10675, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming conviction and sentence for conspiracy to distribute and possess 50 grams or more of methamphetamine with intent to distribute.
  • U.S. v Lewis, 22-10721, appeal from N.D. Tex.
    • per curiam (King, Jones, Duncan), criminal, sentencing
    • Affirming 12-month sentence on revocation of supervised release.
  • U.S. v. Quezada-Lara, 22-10784, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), criminal, sentencing
    • Affirming 30-month sentence on conviction of illegal reentry.
  • U.S. v. Vasquez, 22-10867, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Kallinen v. Newman, 22-20383, appeal from S.D. Tex.
    • Stewart, J. (Stewart, Duncan, Wilson), First Amendment
    • Affirming dismissal of lawyer-plaintiff’s First Amendment claims against probate judge after judge deleted comments made by plaintiff on judge’s personal Facebook posts and blocked him from his account.
  • Granier v. Hooper, 22-30240, appeal from M.D. La.
    • per curiam (Clement, Oldham, Wilson), habeas corpus
    • Affirming denial of petition for habeas relief.
  • U.S. v. Trevino, 22-40600, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez, 22-50599, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hernandez v. Roche, 22-50927, appeal from W.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), Americans with Disabilities Act, supplemental jurisdiction
    • Affirming district court’s default judgment in plaintiff’s favor on ADA claim and denying default judgment on state-law claim as to which district court had held it lacked supplemental jurisdiction due to a lack of common nucleus of operative fact.