April 24-25, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • United Natural Foods, Inc. v. National Labor Relations Board, 21-60532, petition for review of NLRB order
    • Higginson, J. (Higginbotham, Higginson, Oldham), Oldham, J., dissenting; labor law
    • Denying employer’s petition to review NLRB’s order denying request to appeal NLRB Acting General Counsel’s withdrawal of unfair labor practice complaint against labor union, on basis that the Acting General Counsel’s decision was an unreviewable act of prosecutorial discretion.
    • The Court held that it did have jurisdiction to review the NLRB’s order. It held that the NLRB’s order was a final order for purposes of judicial review “[b]ecause the Board’s order allowed an order dismissing a complaint to remain in place,” having “the practical effect of dismissing the complaint.”
    • Applying Chevron deference, the Court then held that the NLRB did not err in finding that the Acting General Counsel had authority to withdraw the complaint, even though the employer had already filed a summary judgment motion, because the Board had not issued a Notice to Show Cause,” which would have had the effect of transferring the the case to the Board and out of the the Regional Director’s prosecutorial discretion. The Court rejected a theory about applicability of Federal Rule of Civil Procedure 41 advanced by the dissent, in part because the employer had not itself raised the argument.
    • The Court also agreed with the NLRB that the prior NLRB General Counsel had not been invalidly removed by the new Administration and replaced by the Acting General Counsel who had withdrawn the petition. “After an extensive analysis of the NLRA’s text and structure, we held [in Exela Enterprise Solutions v. NLRB, 32 F.4th 436, 441, 445 (5th Cir. 2022)] ‘that the NLRA does not provide tenure protections to the General Counsel of the Board.'”
    • Judge Oldham dissented. He would hold that the receipt of the employer’s summary judgment motion vested the Board with jurisdiction over the case and stripped the Regional Director and Acting General Counsel of the ability to exercise prosecutorial discretion. He also wrote extensively in defense of his invocation of an argument not raised by the parties, where it explicated an issue that had been stated imperfectly.
  • Reese v. Garland, 22-60111, petition for review of BIA order
    • Higginbotham, J. (Higginbotham, Smith, Engelhardt), immigration
    • Dismissing in part and denying in part Cambodian citizens’ petition for review of BIA order holding that the visa fraud waiver does not reach the petitioners’ grounds for removal after they were convicted of visa fraud.
    • The Court held that, “Although Petitioners’ construction may align with Congress’s humanitarian intent, the statute’s plain text and five other circuits’ well-reasoned holdings weigh against their position.”

Unpublished

  • Reyes-Hoyes v. Garland, 20-60133, petition for review of BIA order
    • per curiam (Dennis, Higginson [decided by quorum]), immigration
    • Granting in part Guatemalan citizens’ petition for review of BIA order denying applications for asylum; vacating BIA order; and remanding for further proceedings.
  • Jones v. Lumpkin, 21-20106, appeal from S.D. Tex.
    • per curiam (Elrod, Ho, Wilson), prisoner suit
    • Affirming dismissal of Texas state prisoner’s religious exercise claims as untimely.
  • U.S. v. Ezenwa, 21-20609, appeal from S.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sufficiency of evidence
    • Affirming convictions of wire fraud, mail fraud, and conspiracy to commit mail fraud and wire fraud.
  • U.S. v. Roy, 22-10677, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 75-month sentence on conviction of being a felon in possession of a firearm.
  • U.S. v. Cooper, 22-10680, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 210-month sentence on conviction of distributing and receiving child pornography.
  • Melton v. Waxahachie Police Department, 22-10897, appeal from N.D. Tex.
    • per curiam (Elrod, Ho, Wilson), § 1983
    • Affirming dismissal of plaintiff’s § 1983 claims arising from arrest for domestic violence.
  • U.S. v. Holmes, 22-30616, appeal from W.D. La.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 204-month sentence on conviction of distributing methamphetamine.
  • U.S. v. Villatoro-Avila, 22-40348, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 27-month sentence on conviction of illegal reentry.
  • U.S. v. Leija-Martinez, 22-40709, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 40-month sentence on conviction of illegal reentry.
  • U.S. v. Hickcox, 22-50365, appeal from W.D. Tex.
    • per curiam (Jolly, Jones, Ho), criminal, sentencing
    • Affirming conviction and 63-month sentence for being a felon in possession of a firearm.
  • U.S. v. Gibson, 22-50855, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Davis v. Turner, 22-60299, appeal from N.D. Miss.
    • per curiam (Jones, Haynes, Oldham), prisoner suit
    • Affirming dismissal of prisoner’s suit for failure to exhaust administrative remedies.
  • Laury v. Mississippi Department of Rehabilitation Services, 22-60407, appeal from S.D. Miss.
    • per curiam (Elrod, Ho, Wilson), employment discrimination
    • Affirming summary judgment dismissal of employment discrimination claims for failure to present evidence of pretextual reasons for pay disparity.
  • Ayala-Soriano v. Garland, 22-60530, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order upholding denial of her application for asylum, withholding of removal, and protection under the CAT.