May 11-16, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Robinson, 21-10708, appeal from N.D. Tex.
    • Higginson, J. (Richman, King, Higginson), criminal, sentencing, Speedy Trial Act
    • Affirming convictions and 540-month sentence for armed robberies of cell phone stores.
    • The Court held that there was no Speedy Trial Act violation where the defendant’s counsel sought a continuance on the indictment past the Act’s 30-day deadline, holding that the Government need not show that the defendant consented to his attorney’s request for continuance.
    • The Court held that an attempted Hobbs Act robbery qualifies as a “crime of violence.”
    • The Court upheld the upward variance applied by the district court in sentencing, finding there was no plain error.
  • Doe v. William Marsh Rice University, 21-20555, appeal from S.D. Tex.
    • Stewart, J. (Stewart, Elrod, Graves), Graves, J., dissenting; Title IX, breach of contract
    • Affirming in part and reversing in part summary judgment dismissal of Title IX and breach-of-contract claims; affirming dismissal of breach of contract claims and reversing dismissal of Title IX claims, and remanding for further proceedings.
    • The Court held that material issues of fact existed as to the plaintiff’s erroneous outcome claim arising from his discipline for having unprotected consensual sex with another student that resulted in her being infected with herpes. “First, and most significantly, we note that contrary to Roe’s allegations and the University’s position at the time of Doe’s interim suspension, the record supports Doe’s contention that he did inform Roe about his history with herpes before the two had sex and that she may have had herpes already. Indeed, by her own admission, Roe knew that Doe had herpes in his sexual history, but she declined to inquire further about the disease or its transmissibility before having unprotected sex with him.”
    • The Court held that material issues of fact existed as to the plaintiff’s selective enforcement claim. “[W]e agree that a material fact question exists as to whether the University selectively enforced its policies against him by refusing to treat Roe and Doe equally when Doe alleged—in response to Roe’s allegations—that she was guilty of the same conduct of which he was charged: failure to disclose the risk of STD transmission.”
    • The Court held that material issues of fact existed as to the plaintiff’s archaic assumptions claim. “[T]o the extent a rational jury could find that the University’s policy arose from the view that a more-knowledgeable male (Doe) had a duty to educate an unwitting female (Roe) about the precise risks of herpes transmission, its position rests on an archaic assumption.”
    • The Court held, however, that the district court correctly dismissed the plaintiff’s breach of contract claim, noting that the plaintiff had not alleged any breaches of the University’s Code or associated policies.
    • Judge Graves dissented. “This case begins and ends with one question: Is there any evidence that could lead a rational jury to conclude the University conducted its investigation and issued its punishment against Doe because he is a man? The answer is a resounding no.”
  • National Oilwell Varco, L.P. v. Auto-Dril, Inc., 21-40648, appeal from E.D. Tex.
    • King, J. (Richman, King, Higginson), Richman, J., dissenting in part; patent infringement, settlement agreement
    • Reversing district court’s summary judgment dismissing defendant’s counter-claim for breach of the settlement agreement in an underlying prior patent litigation.
    • The Court held that there was subject matter jurisdiction over the action to enforce a prior settlement agreement in an underlying patent litigation, despite the plaintiff’s argument that the district court’s ruling that it had never owned the patent in the first place would have stripped the court of jurisdiction in the underlying patent litigation and therefore removed ancillary jurisdiction over the settlement of that litigation. Because there was a final judgment in the underlying litigation, the Court held that the plaintiff could not collaterally attack the jurisdiction in that underlying case.
    • The Court held that the district court did lack subject matter jurisdiction over the defendant’s fraud counter-claim, on the basis that it was outside the scope of the district court’s retained jurisdiction over the enforcement of the settlement agreement.
    • Chief Judge Richman dissented in part. She would have affirmed the district court’s dismissal of the defendant’s claim for breach of the settlement agreement and remanded the plaintiff’s claim for breach of the settlement agreement to the district court for calculation of damages.
  • Angell v. GEICO Advantage Insurance Co., 22-20093, appeal from S.D. Tex.
    • King, J. (Richman, King, Higginson), insurance, class action
    • Affirming district court’s holding that plaintiffs had standing to sue insurer on behalf of class of insureds claiming that insurer failed to fully compensate them for the total loss of their vehicles, and affirming class certification.

Unpublished

  • U.S. v. Bowden, 22-10397, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Woodard, 22-10610, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming sentence on revocation of supervised release.
  • U.S. v. Eaddy, 22-10819, appeal from N.D. Tex.
    • per curiam (Davis, Smith, Douglas), criminal, guilty plea
    • Affirming denial of motion to withdraw guilty plea.
  • U.S. v. De La Rosa, 22-10954, appeal from N.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 22-11065, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Monroe, 22-11230, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Terry, 22-20173, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willet), criminal, search and seizure
    • Affirming conviction of possession of a firearm by a convicted felon and possession of a machinegun, upholding denial of motion to suppress.
  • U.S. v. Johnson, 22-20300, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, search and seizure
    • Affirming conviction of possession of a firearm by a felon, upholding denial of motion to suppress.
  • Northern Frac Proppants, L.L.C. v. Regions Bank, N.A., 22-30322, appeal from M.D. La.
    • per curiam (Ho, Oldham, Douglas), breach of contract, timeliness, recusal
    • Affirming rescission of recusal order, and affirming summary judgment dismissal as untimely of breach of contract and negligence claims against bank arising from embezzlement of funds by plaintiff’s officer.
  • U.S. v. Nelson, 22-30485, appeal from E.D. La.
    • per curiam (Stewart, Duncan, Wilson), coram nobis
    • Affirming denial of writ of coram nobis by former prisoner arising from conduct during 1994 arrest.
  • Ibrahim v. Department of Interior, 22-30537, appeal from E.D. La.
    • per curiam (Davis, Smith, Douglas), Title VII, employment discrimination
    • Affirming summary judgment dismissal of employment discrimination claims.
  • Moore v. Tangipahoa Parish School Board, 22-30683, appeal from E.D. La.
    • per curiam (Higginbotham, Southwick, Willett), school desegregation, appellate jurisdiction
    • Dismissing appeal from order in school desegregation case that did not take effect due to objections raised by plaintiff.
  • U.S. v. Short, 22-30812, appeal from E.D. La.
    • per curiam (Jones, Haynes, Oldham), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Toscano, 22-40370, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming sentence on conviction of possession of methamphetamine with intent to distribute.
  • Blessett v. Abbott, 22-40378, appeal from S.D. Tex.
    • per curiam (Stewart, Dennis, Willett), sovereign immunity, Rooker-Feldman doctrine
    • Affirming denial of challenge to state court orders addressing child support as barred by the Rooker-Feldman doctrine and under sovereign immunity.
  • Li v. Jaddou, 22-50756, appeal from W.D. Tex.
    • per curiam (Jones, Willett, Douglas), immigration
    • Affirming dismissal of plaintiffs’ suit to compel the U.S. Citizenship and Immigration Services to take action on their green-card applications.
  • Orellana-Espinosa v. Garland, 22-60068, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order dismissing his appeal from an order of the Immigration Judge denying his motion to reopen his proceedings based on lack of notice.
  • Alvarez v. Garland, 22-60323, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order upholding the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Ntreh v. Garland, 22-60387, petition for review of BIA order
    • per curiam (Smith, Southwick, Douglas), immigration
    • Dismissing in part and denying in part Ghanaian and Jamaican citizens’ petition for review of BIA order denying their motion for reconsideration of the denial of their third motion to reopen.
  • Montano-Velasquez v. Garland, 22-60470, 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 dismissing his appeal from an order of the Immigration Judge (IJ) finding him not credible and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Galarza v. Garland, 22-60489, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order denying his motion to reopen.
  • Liqin v. Garland, 22-60507, petition for review of BIA order
    • per curiam (Barksdale, Elrod, Haynes), immigration
    • Denying Chinese citizen’s petition for review of BIA order dismissing her appeal from an order of an Immigration Judge (IJ) finding her not credible and denying her application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Ramirez-Mendoza v. Garland, 22-60655, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Denying Mexican citizen’s petition for review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Zafar v. Garland, 22-60052, petition for review of BIA order
    • per curiam (Stewart, Willett, Douglas), immigration
    • Dismissing in part and denying in part Pakistani citizen’s petition for review of BIA denial of his motion to reopen his immigration proceedings sua sponte.