Take the Fifth

Designated for publication

• Tesla, Inc. v. National Labor Relations Board, 21-60285, petition for review of NLRB order
  • per curiam (en banc), labor law
  • Ordering rehearing en banc; vacating March 31, 2023, panel opinion that had denied petitions for review of NLRB order finding that Tesla CEO Elon Musk posted an unlawful threat on Twitter, that employee was unlawfully terminated, that Tesla did not unlawfully solicit and promise to remedy grievances regarding employees’ safety petition, and determining to not order a public notice-reading remedy, and that had granted cross-petition by NLRB to enforce its order.

• Bruno v. Biomet, Inc., 22-30405, appeal from E.D. La.
  • Higginbotham, J. (Higginbotham, Smith, Engelhardt), products liability, timeliness
  • Vacating summary judgment dismissing plaintiff’s products liability claims as prescribed, finding that “the ultimate question of prescription is best left for the jury to determine,” and remanding for further proceedings.

• Mueck v. La Grange Acquisitions, L.P., 22-50064, appeal from W.D. Tex.
  • Higginson, J. (Higginbotham, Southwick, Higginson), Americans with Disabilities Act
  • Affirming summary judgment dismissing plaintiff’s ADA claims that arose from his employer’s termination of plaintiff when he failed to find coverage for his shifts while he attended court-mandated substance-abuse classes for his alcoholism.
  • The Court held that an impairment need not be “permanent or long-term” to be a disability under the ADA, such that alcoholism would necessarily be excluded as an episodic impairment. The Court then examined the evidence of impairment put forward by the plaintiff to determine that he had “put forth evidence raising a triable issue of fact as to whether his alcoholism amounts to a disability.”
  • However, the Court held that the plaintiff failed to establish that the defendant’s non-discriminatory reason for terminating the plaintiff was pretextual, and affirmed the summary judgment dismissal of his intentional discrimination claim. As to his reasonable-accommodations claim, the Court held that there was insufficient summary judgment evidence that the plaintiff informed the defendant that his requested time off was due to his disability.

• Clarke v. Commodity Futures Trading Commission, 22-51124, appeal from W.D. Tex.
  • Duncan, J. (Graves, Ho, Duncan); Ho, J., concurring; Graves, J., dissenting; administrative law, appellate jurisdiction, mootness
  • Reversing the district court’s effective denial of a preliminary injunction and remanding to district court to enter a preliminary injunction against enforcement based on a rescission of the CFTC Division of Market Oversight’s no-action letter issued to PredictIt, a “futures market for politics.”
  • The district court has failed to act on plaintiffs’ motion for preliminary injunction of the no-action rescission, and appellants appealed from what they deemed as a constructive denial of the preliminary injunction. A motions panel of the Court denied the CFTC’s motion to dismiss the appeal, and carried to the merits panel a motion for injunction pending appeal; the merits panel granted that motion. Subsequent to argument of the merits of the appeal, the CFTC withdrew the rescission of the no-action letter, but still concluded that the no-action letter was “void and should be withdrawn” and provided PredictIt an opportunity to respond before the letter would be re-rescinded.
  • The Court held that the appeal was not mooted by the withdrawal of the rescission. “The parties continue to spar over whether PredictIt can operate outside the CEA’s strictures. Although the DMO has now taken down its August 2022 rescission of the no-action letter, its March 2023 replacement continues to say the letter ‘is void and should be withdrawn.'”
  • The Court held that the withdrawal of the no-action letter was a reviewable final agency action. “The no-action letter qualifies as agency action under the APA. … Here, the whole point of Victoria University’s requesting the no-action letter was to obtain permission to operate an unregistered event futures market, and to get that green light before plunging significant resources into it. … [As to finality,] [o]nce the staff decide to issue or withdraw the letter, there is no further appeal within the agency.”
  • The Court also held that the withdrawal of the no-action letter did not fall within unreviewable agency discretion, as “[t]his case does not challenge an agency’s discretionary decision to enforce (or not enforce) the law. What is challenged, rather, is the withdrawal of a regulatory instrument (the no-action letter) that ensured the DMO would not recommend that the agency enforce the CEA against PredictIt. And, as we have pointed out, the agency’s own regulations allow beneficiaries to rely on such letters.”
  • On the merits of the preliminary injunction, the Court held that the plaintiffs had shown a substantial likelihood of success, because the CFTC failed to provide reasonable explanation for its action. “Not a word discloses which terms were violated or what evidence supports the charge. Nor is any reason given why PredictIt must swiftly close all contracts by a certain date or why the agency rejected less draconian measures, given the significant reliance interests in play. … This is the epitome of arbitrary and capricious action.” The Court also held that the other factors for injunctive remedy were met.
  • Judge Ho concurred, acknowledging the close and divided question regarding whether the withdrawal of the no-action letter is a final agency action.
  • Judge Graves dissented. He would not find that the plaintiffs satisfied the high burden for preliminary injunctive relief, primarily due to the lack of a final agency action. “What happened here is in stark contrast to the concept of explicit consent. On its face, the no-action letter does not grant Appellants the right to do anything. Instead, the letter simply expresses DMO’s intention to ‘not recommend that the Commission take any enforcement action in connection with the operation of [the] proposed market.’ The DMO’s decision was contingent upon information furnished by Appellants and was subject to certain conditions. The letter explicitly states that any alterations, omissions, or discrepancies in the facts or circumstances may render the granted no-action relief null and void. Thus, to maintain that the absence of a recommendation to prosecute equates to formal consent stretches the bounds of credulity.”

Unpublished

• U.S. v. Quintero-Zavala, 22-11183, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Krishna v. Life Insurance Company of North America, 22-20516, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), ERISA
  • Affirming summary judgment in favor of insurers on plaintiff’s ERISA claims following denial of accidental death & dismemberment policy proceeds after her husband’s death in a plan crash.

• Owens v. Lumpkin, 22-40217, appeal from E.D. Tex.
  • per curiam (Davis, Southwick, Oldham), habeas corpus
  • Affirming denial of § 2254 petition.

• U.S. v. Gallardo, 22-40500, appeal from S.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to possess with intent to distribute methamphetamine.

• Salazar v. Lumpkin, 22-50325, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Duncan), habeas corpus
  • Affirming denial of habeas petition as untimely under Moody v. Lumpkin, 70 F.4th 884, 892 (5th Cir. 2023).

• U.S. v. Mendoza, 22-50457, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Engelhardt), criminal, sentencing
  • Affirming concurrent 12-month and 27-month sentences on convictions of assaulting a federal officer, transporting aliens for profit, and aiding and abetting to transport aliens for profit.

• U.S. v. Mendoza-Ponce, 22-50724, appeal from W.D. Tex.
  • per curiam (Jones, Haynes, Oldham), criminal, supervised release
  • Affirming supervised release conditions on conviction of conspiring to transport and harbor aliens, that a probation officer may determine that the defendant poses a risk to another person and must notify that person of that risk.

• U.S. v. Castro-Murillo, 22-51109, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Santiago, 23-10070, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Valencia-Terrazas, 23-50010, appeal from W.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.