July 10, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Prescott v. UTMB Galveston Texas, 21-40856, appeal from S.D. Tex.
    • Stewart, J. (Richman, Stewart, Douglas), prisoner suit
    • Dismissing appeal of dismissal of Texas state prisoner’s suit against medical personnel, upon denying motion to proceed in forma pauperis under 28 U.S.C. § 1915(g) and upon failure to pay required filing fees.
    • The Court held that the plaintiff has accumulated more than three strikes under § 1915 and failed to establish imminent danger. The Court held that a “strike” (a dismissal of a claim for being frivolous) “counts even if the case is pending on appeal” and that an appeal deemed to be frivolous counts as an additional strike. The Court held that the plaintiff’s asserted suspicions of food contamination–without supporting factual allegations–did not rise to the level of “imminent” danger to overcome the three-strikes provision.
  • Rutila v. U.S. Department of Transportation, 22-10848, appeal from N.D. Tex.
    • per curiam (King, Smith, Elrod), Freedom of Information Act
    • Affirming summary judgment in favor of Department of Transportation and Federal Aviation Administration on plaintiff’s FOIA claims. Plaintiff sought various FAA records after failing the final performance assessment to become a permanent air traffic controller.
    • The Court held that the plaintiff’s FOIA request was not “received” until he provided additional information that enabled the FAA to search for the requested records, and that the FAA’s fee assessment within 20 days of that clarification was therefore timely and could be used as a basis to deny records for failure to pay the assessed fee.
    • The Court held that the plaintiff’s requests for folder structures of various network drives would require the FAA to create a record–a screenshot of the folder structures–such that the FAA’s denial of those records was proper under FOIA.
  • A&R Engineering & Testing, Inc. v. Scott, 22-20047, appeal from S.D. Tex.
    • Oldham, J. (Stewart, Willett, Oldham), § 1983, standing
    • Reversing preliminary injunction against City of Houston regarding imposition of contract clause in municipal contract forbidding boycott of Israel by the contracting party for the duration of the contract, and remanding with instructions to vacate the injunction and to dismiss the suit against the Attorney General.
    • The Court held that the plaintiff’s entry into a contract with the City that did not contain the anti-BDS provision, following the district court’s preliminary injunction against enforcement of any such provision, did not moot the appeal of the injunction because the injunction still purported to prohibit the State from enforcing Texas’s anti-BDS law.
    • The Court then held that there was no Article III jurisdiction because the plaintiff lacked standing. The Court held that there was no traceable economic harm to the Attorney General (although there was traceable economic harm to the City). “First, A&R has not shown that the Attorney General could interfere with the City’s contracts. … Second, the Attorney General hasn’t taken any action to suggest he might enforce the provision even if he has such power.”
    • The Court recognized, then sidestepped, the tension between its mootness and standing analyses: “A&R nonetheless contends that the Attorney General should not be able to disclaim enforcement of the statute to avoid plaintiffs’ standing while also complaining that the injunction interferes with his power to enforce the statute to avoid mootness. True, those positions are in tension. But the age-old jurisdictional rule is that plaintiffs must establish a case or controversy in their complaint before they can obtain an injunction.”
  • Young Conservatives of Texas Foundation v. Smatresk, 22-40225, appeal from E.D. Tex.
    • Clement, J. (Smith, Clement, Wilson), standing, preemption, immigration
    • Reversing district court’s judgment in favor of plaintiffs and vacating permanent injunction that required the University of North Texas to charge out-of-state U.S. citizen students the same in-state tuition charged to state-resident illegal immigrants.
    • The Court held, first, that the plaintiff group had associational standing to bring their suit.
    • The Court then held that the district court erred in holding that 8 U.S.C. § 1623(a), a provision of the Illegal Immigration Reform and Immigrant Responsibility Act that provides that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State … for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit … without regard to whether the citizen of national is such a resident,” preempts Texas Education Code § 54.051, which provides for the out-of-state tuition differential. The Court held that the district court erred by rewriting the prohibitory “shall not” as to postsecondary education benefits for illegal immigrants into a mandatory “shall” for out-of-state U.S. citizens.
  • Argueta-Hernandez v. Garland, 22-60307, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Douglas), immigration
    • Dismissing Salvadoran citizen’s petition for review of BIA order denying application for withholding of removal and protection under the Convention Against Torture, holding that the petitioner failed to file his petition within 30 days of entry of the BIA order.
    • The Court held that its prior precedent that a reinstatement order is an order of removal that does not become final until after withholding of removal proceedings are complete had been impliedly overruled by the U.S. Supreme Court in Johnson, 141 S. Ct. at 2287, and Nasrallah, 140 S. Ct. at 1691.

Unpublished

  • U.S. v. Jones, 22-11200, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Medlock, 22-11217, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Guerra, 22-40016, appeal from S.D. Tex.
    • per curiam (Higginbotham, Southwick, Willett), criminal, supervised release
    • Affirming imposition of discretionary grounds of supervised release that are not more restrictive than the pronounced sentence.
  • U.S. v. Davidson, 22-40658, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Alvarez v. Texas Education Agency, 22-50656, appeal from N.D. Tex.
    • per curiam (Richman, Stewart, Douglas), Individuals with Disabilities Education Act, standing
    • Affirming district court’s dismissal of IDEA claim for lack of standing.
  • U.S. v. Hernandez, 22-50752, appeal from W.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal, sentencing
    • Affirming imposition of 24-month sentence on revocation of supervised release.
  • U.S. v. Mendez-Alfaro, 22-50897, c/w 22-50898, appeal from W.D. Tex.
    • per curiam (Davis, Haynes, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Bisetti v. McMorrow, 22-50948, appeal from W.D. Tex.
    • per curiam (Clement, Southwick, Engelhardt), qualified immunity
    • Dismissing appeal of denial of qualified immunity.
  • U.S. v. Garcia, 23-40019, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 120-month sentence on conviction of importing 500 grams or more of methamphetamine.
  • U.S. v. Yzaguirre, 23-40143, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
    • Affirming denial of motion for sentence reduction.
  • Fennell v. Hernandez, 23-50055, appeal from W.D. Tex.
    • per curiam (King, Haynes, Graves), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 suit.
  • U.S. v. Torre, 23-50065, appeal from W.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal, supervised release
    • Affirming imposition of supervised release condition allowing for probation officer determination that defendant presents a risk to another person and requiring notice be given to that person.
  • U.S. v. Orozco-Calderon, 23-50077, appeal from W.D. Tex.
    • per curiam (Davis, Smith, Douglas), criminal, sentencing
    • Affirming sentence for illegal reentry.
  • Ibarra v. Garland, 23-60083, petition for review of BIA order
    • per curiam (King, Haynes, Graves), immigration
    • Denying Mexican citizen’s petition for review of BIA order upholding the denial of his application for cancellation of removal.