August 2, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • El Paso Electric Co. v. Federal Energy Regulatory Commission, 18-60575, appeal from FERC order
    • Jones, J. (Jones, Southwick, Ho), Southwick, J., dissenting; Federal Power Act, administrative law
    • Reversing FERC orders implementing cost allocation scheme for electrical grid improvements in much of the American West, in the WestConnect region, holding that the orders violate the Federal Power Act as a matter of law and that FERC inadequately explained its actions. “The cost causation principle that binds FERC does not authorize it to force its regulated jurisdictional utilities to assume the costs of providing service to non-jurisdictional utilities.”
    • Under the FPA’s mandate for “just and reasonable” electricity transmission rates, a “cost causation principle” is applied, that “the rates charged for electricity should reflect the costs of providing it.” FERC’s Order No. 1000, regarding regional transmission planning and cost allocation, attempts to employ cost-causation by battling subsidization through “free ridership,” seeking to eliminate free riders from the regional transmission grid. In the WestConnect region, under the challenged FERC orders to implement ORder 1000, jurisdictional and non-jurisdictional utilities each make up about half of transmission entities, but only jurisdictional utilities are required to pay for transmission facility development–though any new transmission facility development must account for the needs of both jurisdictional and non-jurisdictional utilities.
    • The Court held that the allowance for non-jurisdictional utilities to “opt out” of cost allocation violates the cost causation principle of the FPA and the free-ridership prohibition of Order No. 1000. The Court held that, while “FERC need not allocate costs with exacting precision or according to a particular formula” (internal quotation marks omitted), “the agency may never approve unjust and unreasonable rates by allocating costs to those who reap little to no benefit, nor may it choose not to allocate costs to those who cause the costs to be incurred and reap the resulting benefits.” (Internal citations and quotation marks omitted).
    • The Court then held that, “even assuming that FERC’s challenged orders theoretically lie at the outer limits of the cost causation principle, the agency’s explanation of how its orders work in this case is arbitrary and capricious.”
    • Judge Southwick dissented. “FERC’s fact findings on remand suffice to support that its compliance orders are structured to minimize any potential free ridership by the non-jurisdictional utilities and do not violate the cost-causation principle.”

Unpublished

  • U.S. v. Mason, 20-40622, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, supervised release
    • The Court affirmed the conditions of supervised release included in the defendant’s sentence.
  • U.S. v. Ramirez-Moreno, 22-11246, appeal from N.D. Tex.
    • per curiam (Jones, Smith, Dennis), criminal
    • Affirming conviction of possession of a firearm by an alien illegally present in the United States after removal.
  • U.S. v. Ekene, 22-20570, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing, restitution
    • Affirming 120-month sentence and $1,255,079.71 restitution award on conviction of conspiracy to commit health care fraud and health care fraud.
  • Plimsoll Marine, Inc. v. City of Gretna, 22-30295, appeal from E.D. La.
    • per curiam (Higginbotham, Smith, Engelhardt), maritime law
    • Affirming judgment dismissing claim for exoneration or limitation of liability arising from allision with water dolphins off wharf in Mississippi River.
  • U.S. v. Loyde, 22-40691, appeal from S.D. Tex.
    • per curiam (Dennis, Elrod, Wilson), criminal, sentencing
    • Affirming 216-month sentence on conviction of possession with intent to distribute more than 50 grams of methamphetamine.
  • Livingston v. Texas, 22-40719, appeal from S.D. Tex.
    • per curiam (Davis, Smith, Douglas), § 1983
    • Affirming dismissal of plaintiff’s claims for false arrest and excessive force.
  • U.S. v. Luna, 22-40793, appeal from S.D. Tex.
    • per curiam (Davis, Willett, Oldham), criminal, sentencing
    • Affirming $150,000 fine as part of sentence for conviction of conspiracy to transport undocumented aliens within the United States.
  • U.S. v. Lopez, 22-51014, appeal from W.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, supervised release
    • Affirming supervised release term that probation officer may make determination that defendant poses a risk to person and require notice be given to that person.
  • U.S. v. Perez-Gallan, 22-51019, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Oldham), criminal
    • Affirming dismissal of indictment for possession of a firearm by someone subject to a domestic violence restraining order, pursuant to United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023).
  • Brooks v. Garland, 22-60364, petition for review of BIA order
    • per curiam (King, Higginson, Willett), immigration
    • Denying Nigerian citizen’s petition for review of BIA order denying her application for waiver of the requirement to file a joint petition for removal of conditions and ordering her removed.
  • Vurimindi v. Mayorkas, 23-50280, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), immigration, mootness
    • Dismissing as moot suit challenging removal proceedings.