July 1-5, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • OnPath Federal Credit Union v. U.S. Department of Treasury, Community Development Financial Institutions Fund, 22-30080, appeal from E.D. La.
    • Ho, J. (Dennis, Elrod, Ho), administrative law
    • Affirming summary judgment in favor of Department of Treasury in its administration of the Community Development Financial Institutions Fund (“the Fund”), and its decision to require repayment of approximately $12 million from OnPath to the Fund based on a materially misrepresented certification application by OnPath.
    • OnPath had gained certification on the basis of representations that it would provide at least 60% of funds to a “Targeted Population,” where Fund certification requires that the 60% threshold goes either to a “Targeted Population” or a designated “Investment Area.” After an Inspector General audit, Treasury determined that OnPath’s “Targeted Population” application contained multiple material misrepresentations and errors.
    • OnPath argued that it was arbitrary and capricious for Treasury to not examine whether OnPath would nevertheless have qualified for certification under the “Investment Area” approach. The Court held, “We reject this contention. For starters, OnPath made errors that were material to its eligibility through the Targeted Population route, and those errors were fatal to its application. … Having made material errors in its application via the Targeted Population route, OnPath cannot rehabilitate its application by invoking the Investment Areas route years later in litigation. … [C]onsider the following analogy: A law review accepts law students with either (1) the highest grades or (2) the highest essay competition scores. Students can apply through either path. And applicants must certify that the law review may remove them from the journal if it discovers material inaccuracy in their applications. So suppose a student submits a plagiarized essay and is admitted to the law review through the essay competition path, without ever submitting his transcript. Later, the journal investigates the essay plagiarism and removes the student. Even if the student would have qualified for membership based on grades alone, removing him for his plagiarized essay would surely be reasonable.”

Unpublished

  • Budhathok v. Garland, 21-60850, petition for review of BIA order
    • Higginson, J. (King, Higginson, Willett), immigration
    • Denying Nepalese citizen’s petition for review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal from the denial by the Immigration Judge (IJ) of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
  • U.S. v. Gallardo, 22-11020, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gongora, 22-11232, appeal from N.D. Tex.
    • per curiam (Jolly, Jones, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Perry, 22-20508, appeal from S.D. Tex.
    • per curiam (Barksdale, Higginson, Ho), criminal
    • Affirming conviction and 132-month sentence for aiding and abetting the brandishing of a firearm during and in relation to a crime of violence.
  • U.S. v. Jenkins, 22-30557, appeal from E.D. La.
    • per curiam (Barksdale, Elrod, Haynes), criminal, sentencing, First Step Act
    • Affirming conviction for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and possession of 500 grams or more of cocaine with intent to distribute; but vacating 120-month sentence and remanding for resentencing under the First Step Act.
  • U.S. v. Hall, 22-30651, appeal from M.D. La.
    • per curiam (Barksdale, Higginson, Ho), criminal, sufficiency of evidence
    • Affirming convictions for wire fraud and making false statements.
  • Watkins v. Carter, 22-40477, appeal from E.D. Tex.
    • per curiam (King, Higginson, Willett), Bivens claim
    • Affirming dismissal of federal inmate’s Bivens claim.
  • U.S. v. Sustaita-Lara, 22-40762, appeal from E.D. Tex.
    • per curiam (Smith, Elrod, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Romero-Rios, 22-40800, appeal from S.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Lynch v. Tesla, Inc., 22-51018, appeal from W.D. Tex.
    • per curiam (Dennis, Elrod, Willett), labor law, WARN Act
    • Affirming dismissal of WARN Act lawsuit by former employees of Tesla, where dismissal occurred prior to Tesla issuing required notice to potential plaintiffs.
  • U.S. v. Hernandez-Chavez, 22-51040, appeal from W.D. Tex.
    • per curiam (Dennis, Elrod, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Arellano v. Withers, 22-60525, appeal from S.D. Miss.
    • per curiam (King, Higginson, Willett), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • Mejia-Carvajal v. Garland, 22-60572, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from the Immigration Judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the CAT.
  • Tegwi v. Garland, 22-60670, petition for review of BIA order
    • per curiam (Barksdale, Elrod, Haynes), immigration
    • Denying Cameroonian citizen’s petition for review of BIA order denying motion for reconsideration and motion to reopen.
  • Hallcy v. Lumpkin, 23-10473, appeal from N.D. Tex.
    • per curiam (Jolly, Jones, Ho), habeas corpus
    • Affirming in part and dismissing in part appeal from denial of motions for appointment of counsel, expansion of the record, and release on bail pending the disposition of § 2254 petition.