July 19-20, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Hogan v. Southern Methodist University, 22-10433, appeal from N.D. Tex.
    • Duncan, J. (Wiener, Southwick, Duncan), breach of contract, COVID-19
    • Reversing dismissal of students’ putative class claims for breach of contract when defendant university failed to refund tuition and fees after switching to remote instruction during the COVID-19 pandemic, finding that the plaintiffs had adequately pled a breach of contract claim; but certifying to the Texas Supreme Court the question of whether Texas’s Pandemic Liability Protection Act retroactively barred the plaintiffs’ claim for monetary relief and was not unconstitutionally retroactive under the state constitution.
    • The Court reversed the district court’s 12(b)(6) analysis on the basis of the intervening decision in King v. Baylor University, 46 F.4th 344 (5th Cir. 2022), holding that the district court should have resolved the dispute whether “educational purposes” in the SMU Student Agreement required educational experiences to be in-person or were not so constrained.
  • TNT Crane & Rigging, Inc. v. Occupational Safety and Health Review Commission, 22-60399, petition for review of OSHRC order
    • Southwick, J. (Barksdale, Southwick, Higginson), administrative law
    • Denying petition for review of order of the Occupational Safety and Health Review Commission, which had reversed decisions favorable to the company by the Administrative Law Judge, holding that certain regulations regarding disassembly of a crane applied to the underlying accident.

Unpublished

  • Garcia v. City of Lubbock, 21-11134, appeal from N.D. Tex.
    • per curiam (Stewart, Dennis, Higginson), § 1983, qualified immunity, Americans with Disabilities Act
    • Reversing grant of qualified immunity to sheriff on deliberate indifference and failure-to-train claims; affirming summary judgment granting qualified immunity to other officers and jail staff; and affirming summary judgment dismissal of ADA claims.
  • Dockery v. Texas Department of Criminal Justice, 21-20439, appeal from S.D. Tex.
    • per curiam (King, Elrod, Southwick), employment discrimination, juror bias
    • Affirming district court judgment rejecting plaintiff’s discrimination claims and rejecting claims of improper juror influence.
  • U.S. v. Davis, 22-10807, appeal from N.D. Tex.
    • per curiam (Davis, Haynes, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Bishop, 22-11081, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Acuna-Vences, 22-40822, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cruz-Benavente, 22-50078, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, evidence
    • Affirming convictions for sexually abusing a minor, rejecting challenges to the evidentiary decisions admitting out-of-court statements by the victim, admitting statements of a detective who interviewed the victim, and limiting the defendant’s ability to cross-examine the victim using her Facebook posts.
  • U.S. v. Cupples, 22-50726, appeal from W.D. Tex.
    • per curiam (Jolly, Smith, Duncan), criminal, sentencing
    • Affirming 198-month sentence on conviction of receipt of child pornography.
  • U.S. v. Pierce, 22-50992, appeal from W.D. Tex.
    • per curiam (Jolly, Smith, Duncan), criminal, sentencing
    • Affirming 36-month sentence on revocation of supervised release.
  • U.S. v. Denman, 22-60236, appeal from S.D. Miss.
    • per curiam (Jolly, Oldham, Wilson), criminal, guilty plea
    • Dismissing appeal from guilty plea conviction of possession with intent to distribute 50 grams or more of methamphetamine, as barred by the appeal waiver in the plea agreement.
  • Keen v. Wal-Mart Stores East, L.P., 22-60269, appeal from S.D. Miss.
    • per curiam (Stewart, Dennis, Southwick), Dennis, J., concurring in judgment only; personal tort
    • Affirming summary judgment dismissal of plaintiff’s premises liability claims.