Take the Fifth

Designated for publication

• U.S. v. Lipscomb, 18-11419, c/w 19-10948, appeal from N.D. Tex.
  • Smith, J. (Smith, Clement, Wilson), criminal, supervised release, sentencing
  • Vacating sentences for revocation of supervised release, and rendering judgment accordingly.
  • Defendant had originally been sentenced to 20 years imprisonment and 5 years’ supervised release for a conviction of being a felon in possession of a firearm. The district court then vacated the sentence and resentenced the defendant to 10 years’ imprisonment and 3 years’ supervised release. After serving the ten-year term, twice the defendant violated terms of the supervised release and was sentenced to further imprisonment. In the meantime, the government successfully appealed the initially reduced sentence and the Fifth Circuit had ordered the original 20-year prison term reimposed. “Because the revocation judgments are part of Lipscomb’s reduced sentence–a sentence we vacated–we now vacate the two revocation judgments, we well, and render judgment accordingly.”

• Ganpat v. Eastern Pacific Shipping PTE, Ltd., 22-30168, appeal from E.D. La.
  • Ho, J. (Jones, Ho, Wilson), Jones, J., dissenting; personal torts, anti-suit injunction
  • Affirming imposition of anti-suit injunction against parallel proceeding in courts in India to plaintiff’s negligence and personal injury claims.
  • Plaintiff, an Indian crewmember aboard a vessel owned by the Singapore-based defendant, brought suit against the defendant in the Eastern District of Louisiana for injuries he received after contracting malaria after the defendant failed to resupply on anti-malarial drugs while in a U.S. port prior to sailing to Gabon, where malaria was at high-risk. The defendant waived objections to personal jurisdiction and venue, but for two and a half years evaded the plaintiff’s attempt to serve it. In the meantime, the defendant’s Indian subsidiary filed parallel litigation in Indian court, gained an antisuit injunction against the plaintiff’s pursuit of the first-file American litigation, and had him arrested and jailed when he refused to sign settlement papers or pay to retain counsel. The Indian court had forced him to rely on the defendant’s counsel, until he agreed to retain his own counsel after spending a day in jail. The plaintiff moved for an antisuit injunction in the Eastern District of Louisiana; “[f]inding the Indian litigation vexatious and oppressive, and determining that it need not show comity to the Indian court that had attempted to enjoin the American suit, the district court granted the injunction in favor of Ganpat.”
  • The Court held that the Indian litigation satisfies the vexatiousness prong of the antisuit injunction analysis: “If unwarranted inconvenience and expense present sufficient hardship to support an anti-suit injunction, surely jailtime and seizure of property also suffice.” The Court also held that the Indian litigation sought to curtail the first-filed American litigation, frustrating the American courts’ jurisdiction.
  • As to the comity prong, that Court held that “no public international issues are implicated in this case.” Additionally, the Court held that the plaintiff’s case became “ensconced” in the American judicial system when the defendant appeared and consented to personal jurisdiction almost a year prior to filing the Indian litigation. “It would be strange to require a district court to genuflect … before a foreign court that refuses to respect the American court. In light of the not-insubstantial vexatiousness of the Indian litigation and the scant comity interests at stake, the district court was well within its discretion to grant the injunction.” (Internal quotation marks and citations omitted).
  • The Court then countered the dissent to hold that the extraordinary remedy of an antisuit injunction was warranted in this case. The Court held that the Circuit’s precedent did not require a showing on the four traditional injunction factors for an antisuit injunction; and that the precedent did not place the plaintiff’s nationality as a dispositive factor for international antisuit injunctions.
  • Judge Jones dissented, primarily on the basis that the paltry nature of U.S. contacts with the underlying facts did not justify the extraordinary remedy. She also presented a countervailing view of the proceedings in the Indian court, including that, once the plaintiff retained a lawyer he was not again threatened with jail time.

• Restaurant Law Center v. U.S. Department of Labor, 22-50145, appeal from W.D. Tex.
  • Duncan, J. (Higginbotham, Duncan, Engelhardt), Higginbotham, J., dissenting; labor law
  • Reversing denial of preliminary injunction against enforcement of Department of Labor regulations on how to apply the federal minimum wage to tipped employees, on basis that plaintiffs had sufficiently shown irreparable harm from unrecoverable compliance costs with the new regulations, and remanding for further proceedings to consider the remaining prongs of the preliminary injunction analysis.
  • “Curiously, the district court did not acknowledge the Department’s concession that some businesses will incur ongoing costs to ensure they can continue to claim a tip credit. … Nor did the court cite our precedent teaching that nonrecoverable compliance costs are usually irreparable harm. Those omissions are striking, given that Plaintiffs assert that their members will incur exactly the kinds of continuing compliance costs predicted by the Department itself. And, of course, no one claims that those costs could be recovered if the rule were held invalid.” (Citations omitted).
  • Judge Higginbotham dissented on the basis that the majority failed to fully account “for the demanding standard of review of a denial of a preliminary injunction, an ‘extraordinary remedy,'” and he would hold that the clear-error standard of review did not allow for reversal of the district court.

Unpublished

• U.S. v. Bittner, 20-40597, appeal from E.D. Tex.
  • per curiam (Richman, Clement, Duncan), banking law
  • On remand from the U.S. Supreme Court, remanding to the district court for further proceedings on government’s suit to obtain judgment in the amount of civil penalties for non-willful failure to comply with the reporting requirements of the Bank Secrecy Act with respect to foreign account holdings.

• U.S. v. Alvarez, 22-10209, appeal from N.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Romero, 22-10470, appeal from N.D. Tex.
  • per curiam (Jones, Haynes, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Luna, 22-40606, appeal from S.D. Tex.
  • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
  • Affirming 304-month sentence on conviction of aiding and abetting kidnapping.

• Baugh v. Lumpkin, 22-50335, appeal from W.D. Tex.
  • per curiam (Higginbotham, Graves, Ho), habeas corpus
  • Affirming denial of § 2254 petition.

• Smith v. Terry, 22-50453, appeal from W.D. Tex.
  • per curiam (Clement, Oldham, Wilson), Oldham, J., dubitante; bankruptcy
  • Affirming three orders of the district court challenged by sole member of debtor–an order to compel, denial of a motion to strike, and denial of a motion for reconsideration.
  • Judge Oldham issued a dubitante opinion, to express whether the Court’s reliance on prudential standing doctrines such as the “person aggrieved test” “nears obsolescence.” “[W]hatever the provenance of constitutional standing doctrines, prudential standing’s (ahem) standing is far shakier.”

• U.S. v. Chavez-Guevara, 22-50691, c/w 22-50696, appeal from W.D. Tex.
  • per curiam (Higginbotham, Graves, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Wilson v. Marshall Shredding, L.L.C., 22-50709, appeal from W.D. Tex.
  • per curiam (Higginbotham, Southwick, Willett), employment
  • Affirming summary judgment in favor of employer on plaintiff’s retaliation claim related to his taking leave under the Emergency Paid Sick Leave Act.

• U.S. v. Jaimes-Reynoso, 22-50804, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Ferrara v. Wallace, 22-51099, appeal from W.D. Tex.
  • per curiam (King, Higginson, Willett), § 1983
  • Affirming dismissal of § 1983 claims arising from plaintiff’s arrest.

• Cortez-Ramirez v. Garland, 22-60502, petition for review of BIA order
  • per curiam (Smith, Southwick, Douglas), immigration
  • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order denying motion to reopen.

• Butler v. Commissioner of Internal Revenue, 22-60658, appeal from U.S. Tax Court
  • per curiam (Duncan, Oldham, Wilson), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s petition filed in U.S. Tax Court.