October 6, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Cloud v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan, 22-10710, appeal from N.D. Tex.
    • Willett, J. (Willett, Engelhardt, Oldham), ERISA
    • Reversing district court’s order of reclassification of former NFL player to the highest level of disability plan benefits under the League’s retirement and disability plan, holding that the former player had not timely appealed the initial classification and had failed to show a change of circumstances between that classification and the request for reclassification. “We commend the district court for its thorough findings—devastating in detail—which expose the NFL Plan’s disturbing lack of safeguards to ensure fair and meaningful review of disability claims brought by former players who suffered incapacitating on-the-field injuries, including severe head trauma. Nevertheless, we are compelled to hold that the district court erred in awarding top-level benefits to Cloud. Although the NFL Plan’s review board may well have denied Cloud a full and fair review, and although Cloud is probably entitled to the highest level of disability pay, he is not entitled to reclassification to that top tier because he cannot show changed circumstances between his 2014 claim for reclassification and his 2016 claim for reclassification—which was denied and which he did not appeal.”
  • Carmichael v. Balke, 22-20430, appeal from S.D. Tex.
    • per curiam (Ho, Oldham, Douglas), bankruptcy
    • Affirming in part and vacating in part judgment on adversary proceeding from bankruptcy of company that manufactured technology to separate usable oil from various emulsions, where retrial of adversary proceeding before new bankruptcy judge after judge for original trial of claim had retired had resulted in a judgment for the plaintiffs that was 96% lower than the original award, that reduced the attorneys’ fees awarded, and that eliminated any judgment for post-judgment interest. The Court held that the bankruptcy court’s factual findings regarding the assigned assets were not clearly erroneous, that the damages award was nevertheless clearly erroneous, and that the plaintiffs were entitled to post-judgment interest.
  • The Princeton Excess and 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
    • Granting panel rehearing of decision issued August 25, 2023, withdrawing original panel opinion, and substituting with new panel opinion that 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, but remanding to district court to stay litigation pending resolution of underlying state court lawsuit.
    • As before, Judge Ho dissented, as he would certify the insurance coverage question to the Texas state supreme court.
  • Sampson v. USAA, 22-30351, appeal from W.D. La.
    • Higginson, J. (Barksdale, Southwick, Higginson), insurance, class action
    • Vacating certification of class of USAA insurance holders seeking actual cash value valuation of total-loss vehicle coverage using NADA values instead of the CCC One Market Valuation Report, holding that the plaintiffs failed to show injury because they failed to show entitlement to the NADA values for their totaled vehicles, and remanding.
  • Darling Ingredients, Inc. v. OSHA, 22-60466, appeal from OSHA order
    • Clement, J. (Jones, Clement, Haynes), occupational safety
    • Affirming citations of petitioner for failure to engage proper lockout/tagout procedures after two employees were killed while unclogging a machine at a chicken-rendering plant.
  • Law Office of Rogelio Solis PLLC v. Curtis, 23-40125, appeal from S.D. Tex.
    • Higginson, J. (Graves, Higginson, Ho), bankruptcy
    • Affirming bankruptcy court’s judgment that, in the circumstances present in the case, the pre-petition payment of insurance proceeds to a tort claimant creditor of a debtor in accordance with state insurance law could constitute a “transfer of an interest of the debtor in property” under 11 U.S.C. § 547.

Unpublished

  • Richards v. McLane, 21-20450, appeal from S.D. Tex.
    • per curiam (Jones, Dennis, Willett), civil commitment
    • Affirming summary judgment dismissal of § 1983 claims arising from civil commitment of sexual predator.
  • Converse v. Kimball, 22-40395, appeal from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Oldham), qualified immunity
    • Affirming denial of qualified immunity summary judgment as to three officers on claims arising from inmate’s suicide, and dismissing cross-appeal of grant of qualified immunity summary judgment as to fourth officer.
  • U.S. v. Lopez, 22-50944, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming conviction and 262-month sentence for conspiracy to import 500 grams or more of a mixture or substance containing methamphetamine, importation of 500 grams or more of a mixture or substance containing methamphetamine, conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, and possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine.
  • Arzu-Robledo v. Garland, 22-60235, petition for review of BIA order
    • per curiam (Clement, Haynes, Oldham), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order upholding the denial of his motion to reopen and denying his motion to remand removal proceedings.
  • Welsh v. Unknown Male Shift Supervisor, 23-10171, appeal from N.D. Tex.
    • per curiam (Higginbotham, Smith, Elrod), prisoner suit
    • Dismissing appeal of dismissal of prisoner’s § 1983 claims.
  • U.S. v. Wilson, 23-10210, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gunn, 23-10252, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rodriguez, 23-10417, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Dominguez, 23-50024, appeal from W.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Flores v. BJ’s Restaurant Operations Co., 23-50038, appeal from W.D. Tex.
    • per curiam (Clement, Haynes, Oldham), arbitration
    • Reversing district court’s judgment that plaintiff and his former employer did not have a valid agreement to arbitrate under Texas law.