Take the Fifth

Designated for publication

• U.S. v. Massey, 20-10478, appeal from N.D. Tex.
  • Jones, J. (Jones, Willett, Douglas), Douglas, J., dissenting; habeas corpus, ineffective assistance of counsel
  • Affirming denial of petitioner’s § 2255 petition on IAC claim arising from trial counsel’s inadequate argument and appellate counsel’s lack of argument for “back time” credit on sentence for possession of a firearm by a felon to account for thirteen months already spent in prison on related conviction of conspiracy to possess with intent to distribute methamphetamine.
  • The Court held that the Sentencing Guidelines’ recommendation for credit for time served on a related offense was “not obligatory”; and that “Massey’s trial counsel argued for the application of U.S.S.G. § 5G1.3(b) in a memorandum and noted the argument in open court; he was not constitutionally obliged to do more. Massey’s appellate counsel was not deficient for failing to raise the issue because the district court did not contravene any binding case law.” The Court further held that any IAC error was harmless because “the district court’s subsequent actions make it clear that the defendant was not prejudiced.”
  • Judge Douglas dissented. She pointed out that the petitioner’s trial counsel had not stated the correct argument regarding back time, “referr[ing] to credit for back time going back to April 2013, the date of his state arrest. Counsel’s sentencing memorandum and argument at sentencing therefore misstated the key issue by not specifying the need for credit for the period served between his first and second federal sentencings. … To make matters worse, counsel also failed to object when the district court sentenced Massey pursuant to § 5G1.3(d), without calculating any sentence adjustment for the time already served on the Eastern District sentence that would not be credited by BOP, and without mentioning the applicable guideline, § 5G1.3(b), at all, nor giving reasons for deviating from it. Considering the circumstances, this specific omission—the failure to object—was deficient and fell below an objective standard of reasonableness.” She also rejected the harmless error analysis, noting that “[e]ven a day that is spent incarcerated is enough to establish prejudice.”

• U.S. v. Reinhart, 22-10103, appeal from N.D. Tex.
  • per curiam (Higginbotham, Graves, Douglas), criminal, restitution, guilty plea
  • Vacating $40,254,297.72 restitution order on guilty plea conviction of misprision of a felony (wire fraud), and remanding for further factfinding and any necessary adjustment of the restitution award.
  • The Court held that the defendant’s appeal waiver in his guilty plea agreement did not foreclose his appeal of the restitution amount, as his appeal arguments fit within the exception in the waiver for appealing a sentence exceeding the statutory maximum punishment. “Reinhart’s claim that the district court ordered restitution for losses that were not caused by his ‘offense of conviction’ is an argument that the district court awarded restitution in excess of that authorized by the MVRA and is therefore not barred by his appeal waiver.”
  • The Court held that the district court erred in calculating the restitution amount by not determining whether the amount awarded included amounts for losses that occurred before the defendant was employed by the company that committed the fraud, or whether the amount included losses for portions of the fraudulent scheme with which the defendant was not involved and had no knowledge.

• Abdallah v. Mesa Air Group, Inc., 22-10686, appeal from N.D. Tex.
  • Smith, J. (King, Smith, Elrod), § 1981
  • Reversing summary judgment dismissing plaintiffs’ § 1981 claims against airline that, due to a flight attendant’s suspicion of the two plaintiffs, delayed flight until it was canceled and all the passengers had to be rebooked on another flight.
  • The Court held that the district court erred in its disparate treatment analysis. “Defendants’ contention is that because all passengers experienced the same canceled flight, there was no disparate treatment—plaintiffs were treated the same as the non-minority passengers. But that confuses the test. Disparate treatment can be shown by comparing one person’s experience to that of a person without the protected trait. But it can also be shown if, but for that person’s protected trait, the outcome would have been different. Plaintiffs allege that but for their protected classes (race and national origin), the flight would not have been canceled. That is an allegation of disparate treatment.”
  • The Court also held that there was summary judgment evidence of a breach of contract sufficient to trigger § 1981, even though the airplane ticket terms provided discretionary power to the airline in certain circumstances: “The right to be free from discrimination in ‘the enjoyment of all benefits, privileges, terms and conditions’ means that one has the right to be free from discrimination in the discretionary ‘benefits, privileges, terms and conditions’ of a contract, too.”
  • The Court also reversed the district court’s summary judgment conclusion on immunity under 49 U.S.C. § 44902(b). “We hold that § 44902(b) does not provide immunity for a § 1981 claim: If a passenger’s protected status is the but-for cause of the airline’s decision to remove that passenger, then § 44902(b) does not grant immunity to the airline because the decision was not made because the passenger was ‘inimical to safety.'”

• Klick v. Cenikor Foundation, 22-20434, appeal from S.D. Tex.
  • Douglas, J. (Graves, Higginson, Douglas), Fair Labor Standards Act
  • Affirming district court’s order certifying a collective action under the FLSA for claim by facility’s drug rehabilitation patients who were assigned jobs and required to work.
  • As part of “vocational therapy” provided to patients, Cenikor required them to work, sometimes at outside “community business partners.” Cenikor invoiced up to $7 million annually to these partners for the work performed by the patients, including at 1.5-times rates for overtime work they performed, but did not pay the patients for the work they performed as part of this “vocational therapy,” only supplying reduced-rate or free addiction treatment and room and board.
  • The Court held that the district court applied the right standard in determining that the plaintiffs were FLSA “employees.” Although they understood they would not receive cash, the provision of room and board and treatment constituted in-kind compensation that created the economic reality that they were “employees” for FLSA purposes.
  • The Court held that the district court did not abuse its discretion in finding a that the employees were “similarly situated” for purposes of maintaining a collective action: “A showing that members of a collective action are similarly situated does not require members to be identically situated but requires plaintiffs to show a demonstrated similarity between the purported collective, such as a factual nexus that binds the claims together so that hearing all claims in one proceeding is fair to all parties and not beset with individual inquiries.”

• Flowers v. Wal-Mart Inc., 22-30309, appeal from W.D. La.
  • Dennis, J. (Stewart, Dennis, Southwick), personal tort
  • Reversing and remanding from summary judgment dismissal of plaintiff’s slip-and-fall claim, holding that the plaintiff had raised genuine issues of material fact.

• Spivey v. Chitimacha Tribe of Louisiana, 22-30436, appeal from W.D. La.
  • Oldham, J. (Clement, Oldham, Wilson), remand
  • Reversing judgment denying remand and dismissing case with prejudice, and remanding with instructions to remand to state court.
  • Plaintiff had filed suit in federal court against tribe for claims arising from his arrest and termination of employment from tribal casino. The magistrate issued a report and recommendation to dismiss the suit with prejudice due to tribal sovereign immunity. Between the time the magistrate issued the recommendation and the district court adopted it, the plaintiff filed an identical suit in state court, which was then removed. The magistrate issued a recommendation to deny remand and to dismiss with prejudice, finding that remand would be futile because the same tribal sovereign immunity would bar the suit in state court, too.
  • The Court held that there is no “futility exception” to 28 U.S.C. § 1447(c)’s command to remand when there is a lack of subject matter jurisdiction.
  • The Court also held that the district court erred in issuing the dismissal with prejudice. “[W]hen a district court lacks jurisdiction, it is emphatically powerless to reach the merits.”

• McLin v. Twenty-First Judicial District, 22-30490, appeal from M.D. La.
  • Higginbotham, J. (Higginbotham, Graves, Douglas), employment discrimination, Title VII, qualified immunity
  • Affirming 12(b)(1) and 12(b)(6) dismissal of white court employee’s discrimination suit against the judicial district and chief judge when she was terminated based on offensive social media post.
  • The Court held that neither the “21st Judicial District” nor the state district court had juridical personality under Louisiana law, and were therefore not capable of being sued.
  • The Court affirmed the dismissal of the claims against the chief judge on separate grounds. While the district court had held that the plaintiff had failed to make allegations to satisfy the McDonnell Douglas standard, the Court disagreed with this but instead held that she failed to allege protected status.
  • The Court also affirmed the district court’s finding that the chief judge was entitled to qualified immunity, because the plaintiff failed to show that the chief judge violated a clearly established constitutional right.

• Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, 23-10362, appeal from N.D. Tex.
  • Elrod, J. (Elrod, Ho, Wilson), Ho, J., dissenting in part; abortion law, administrative law, standing
  • Vacating in part and affirming in part district court’s preliminary injunction staying the effective date of a 2000 approval of mifepristone, 2016 amendments to that approval, the 2019 approval of generics, and the 2021 decision to not enforce in-person prescription and fulfillment requirements. The Court vacated the injunction as to the 2000 approval as likely barred by the statute of limitations; vacated the 2019 generic approval for failure of the plaintiffs to show harm from that action; affirmed the injunction/stay order as to the 2016 amendments and 2021 non-enforcement decision.
  • The Court specifically noted that the district court’s order remains subject to a stay by the U.S. Supreme Court pending resolution of this appeal and any writ petition to the U.S. Supreme Court.
  • The Court held that the plaintiffs showed associational standing, finding that “it is highly likely that one or more of their members will be required to provide emergency care to a mifepristone patient in the near future.” The Court held that this presents a cognizable injury when they “are forced to divert time and resources away from their regular patients,” when they are “expose[d] … to greater liability and increased insurance costs,” and “when they are forced to choose between following their conscience and providing care to a woman experiencing complications as a result of taking mifepristone.” The Court then found that these injuries were fairly traceable to the 2016 and 2021 FDA actions, but not the 2019 generics approval.
  • The Court held that the “reopening doctrine” did not provide the plaintiffs with a way around the time limits for challenging the 2000 approval.
  • The Court held that the plaintiffs were likely to succeed on the merits of their APA challenge to the 2016 amendments for failure to consider an important aspect of the problem, by failing to consider the cumulative effect of the 2016 amendments: “increasing the maximum gestational age from forty-nine days to seventy days; allowing non-physicians to prescribe mifepristone; removing the requirement that the administration of misoprostol and the subsequent follow-up appointment be conducted in person; eliminating prescribers’ obligation to report non-fatal adverse events; switching the method of administration for misoprostol from oral to buccal; and changing the dose of mifepristone (600 mg to 200 mg) and misoprostol (400 mcg to 800 mcg).” The Court also found fault with the FDA’s failure “to consider … whether it needed to continue to collect data of non-fatal adverse events in light of the ‘major’ changes to the mifepristone REMS.”
  • Determining that the challenge to the 2021 non-enforcement decision was not moot, the Court held that the plaintiffs were likely to succeed on the merits of the APA challenge to that decision. The Court held that FDA acted arbitrarily and capriciously in relying on unreliable published data.
  • The Court then held that the plaintiffs showed a likelihood of irreparable harm, and that the balance of equities militated in favor of the district court’s injunctive remedy. “No legal remedy can adequately redress the Doctors’ conscience and mental-distress injuries. And the economic injuries—the potential damage to their medical practice, heightened exposure to malpractice liability, and increased insurance costs—are irreparable too. Monetary harm cannot be remedied where, as here, the defendant is entitled to sovereign immunity.”
  • Judge Ho concurred in part and dissented in part. He would hold that the reopening doctrine renders the plaintiffs’ challenge to the 2000 approval timely, and that the 2000 approval was unlawful.

Unpublished

• U.S. v. Washington, 22-10574, appeal from N.D. Tex.
  • per curiam (Jones, Haynes, Oldham), criminal, sentencing, Armed Career Criminal Act
  • Affirming ACCA-enhanced concurrent 15- and 30-month sentences on convictions of possession of a firearm by a felon and possession with intent to distribute methamphetamine.

• U.S. v. Daughtry, 22-40764, appeal from E.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal, guilty plea
  • Affirming guilty plea conviction of conspiracy to use the internet to distribute a date rape drug—1,4-butanediol—to persons that he knew or had reasonable cause to believe were not authorized purchasers.

• U.S. v. Swope, 23-20029, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
  • Affirming 360-month sentence on conviction of sexual exploitation of minor children, distribution of child pornography, receipt of child pornography, and possession of child pornography.

• Hernandez-Vega v. Garland, 23-60085, petition for review of BIA order
  • per curiam (Willett, Duncan, Wilson), immigration
  • Denying Honduran citizen’s petition for review of BIA order upholding the denial of asylum, withholding of removal, and protection under the Convention Against Torture.

• U.S. v. Moran, 23-60130, appeal from S.D. Miss.
  • per curiam (Higginbotham, Stewart, Elrod), criminal, compassionate release
  • Affirming denial of motion for compassionate release.