August 25, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Texas v. Nuclear Regulatory Commission, 21-60743, appeal from Nuclear Regulatory Commission Order
    • Ho, J. (Jones, Ho, Wilson), administrative law, standing
    • Granting petition for review of NRC order, and vacating license for temporary storage for spent nuclear fuel, holding that the NRC does not have authority under the Atomic Energy Act to license temporary nuclear waste storage facilities.
    • The Court first held that the petitioners did not waive constitutional standing by providing only a general jurisdictional statement, as they reasonably believed standing to be self-evident on the record. “From the earliest stages of this proceeding, the Commission has challenged jurisdiction on statutory standing grounds only. It twice moved to dismiss, but neither motion challenged constitutional standing. Accordingly, Petitioners could reasonably assume it was self-evident.” The Court held that Texas demonstrated injury-in-fact because the facility license purported to preempt a state law passed to prohibit storage of nuclear waste in the state; while a local oil and gas developer had demonstrated the geographic-nexus to the proposed waste facility to establish environmental injury. The Court held that the petitioners also had Hobbs Act standing, as both alleged that the NRC acted ultra vires, beyond its authority under the Atomic Energy Act and Nuclear Waste Policy Act.
    • The Court then held that the NRC had no statutory authority to issue the license. “The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act.”
  • The Princeton Excess & Surplus Lines Insurance Co. v. A.H.D. Houston, Inc., 22-20473, appeal from S.D. Tex.
    • Wilson, J. (Elrod, Ho, Wilson), Ho, J., dissenting; insurance
    • Reversing summary judgment for insured strip clubs on insurer’s declaratory judgment action regarding insurance coverage for suit brought by models whose likenesses clubs had used without permission in advertisements, holding that the policies’ advertising injury clauses foreclosed coverage.
    • Judge Ho dissented. He would have certified the coverage questions to the Texas Supreme Court.
  • Bailey v. Iles, 22-30509, appeal from W.D. La.
    • Douglas, J. (Higginbotham, Graves, Douglas), qualified immunity, First Amendment
    • Reversing qualified immunity summary judgment for defendant detective and sheriff arising from arrest of plaintiff “as a terrorist for a post on Facebook,” holding that plaintiff’s post was constitutionally protected speech and that summary judgment was therefore improper.
    • The Court held that the plaintiff’s Facebook post, which contained what he intended to be a joke about local sheriff’s deputies being under orders to shoot on sight those infected with covid, was neither incitement to lawless action nor a “true threat,” and thus remained under the aegis of protected speech. “The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke. Nor did Bailey have the requisite intent to incite; at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement. … On its face, Bailey’s post is not a threat. But to the extent it could possibly be considered a ‘threat’ directed to either the public—that RPSO deputies would shoot them if they were ‘infected’—or to RPSO deputies—that the ‘infected’ would shoot back—it was not a ‘true threat’ based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt.”
    • The Court held that it was clearly established that the plaintiff’s Facebook post failed to meet the elements of “terrorizing.” The Court held that the plaintiff did not need to provide precedent addressing warrantless arrests specifically pursuant to the terrorizing statute, because it is clearly established that a warrantless arrest without probable cause is a violation of clearly established law.
  • Whirlpool Corp. v. Shenzhen Sanlida Electrical Technology Co., 22-40376, appeal from E.D. Tex.
    • Higginson, J. (Barksdale, Southwick, Higginson), trademark infringement
    • Affirming grant of preliminary injunction to Whirlpool on its trademark infringement action against defendant regarding KitchenAid stand mixers.
    • The Court opened with this paean to the KitchenAid: “For decades, the KitchenAid stand mixer, with its signature bullet-shaped head, sloped neck, and sleek design, has been a staple on wedding registries and the crown jewel in a home cook’s kitchen.”
    • The Court held that the lack of completed service of process under the Hague Convention was unnecessary to entry of preliminary injunction, as Rule 65 only required notice to the adverse party–which the defendant had here, as their counsel was present at the injunction hearing.
  • Arredondo v. Elwood Staffing Services, Inc., 22-50502, appeal from W.D. Tex.
    • Clement, J. (Jones, Clement, Haynes), Title VII, employment discrimination
    • Affirming summary judgment dismissal of discrimination and retaliation claims against staffing company for pervasive sexual harassment experienced by employees at placement with Schlumberger, holding that the plaintiffs “seek to hold the wrong party liable for their injuries. They cannot establish why Elwood [the staffing agency] should be held responsible for the misconduct of Schlumberger’s employees.”

Unpublished

  • U.S. v. Jordan, 22-40519, appeal from E.D. Tex.
    • per curiam (Higginbotham, Graves, Douglas), criminal, sufficiency of evidence, jury instructions
    • Affirming in part and vacating in part bribery and tax fraud convictions of Texas developer and former mayor. The Court held there was sufficient evidence of a quid pro quo for purposes of the bribery convictions, and that any error in the district court’s jury instruction was harmless. The Court also held that the meeting of the $10,000 threshold meant that the government did not need to prove that the bribery was traceable to federal funds. The Court upheld that convictions for tax fraud, but vacated convictions of conspiracy to commit tax fraud. The Court upheld the 72-month sentences of the defendants.
  • U.S. v. Flournoy, 22-50581, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
    • Affirming sentence on conviction of possession with intent to distribute five grams or more of actual methamphetamine.
  • Hoenninger v. Leasing Enterprises, Ltd., 22-50765, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Douglas), Fair Labor Standards Act, attorneys’ fees
    • Affirming fees-and-costs award to plaintiffs who obtained some, but not all, of the relief sought from their employer on their FLSA collective action claim.
  • Olivier v. City of Brandon, 22-60566, appeal from S.D. Miss.
    • Douglas, J. (Wiener, Graves, Douglas), prisoner suit
    • Affirming holding that Heck barred plaintiff’s § 1983 claims.