Take the Fifth

Designated for publication

• Commodity Futures Trading Commission v. EOX Holdings, L.L.C., 22-20622, appeal from S.D. Tex.
  • Jones, J. (Jones, Stewart, Duncan), administrative law
  • Reversing $6.5 million penalty judgment and vacating injunction issued after jury verdict in civil enforcement action brought by the CFTC against energy commodity trader under 17 CFR § 155.4(b)(2)(i), “a regulation that prevents commodities traders from ‘taking the other side of orders’ without clients’ consent.” The Court held that “the Defendants lacked fair notice of the CFTC’s unprecedented interpretation of this thirty-nine-year-old Rule.”
  • The trial court accepted the CFTC’s proposed jury instruction on “taking the other side of an order,” which in relevant part expressly instructed the jury that the commodity trader need not “own or have a financial interest in the account he was trading from in order to take the other side of a customer order.” Here, the commodity trader was administering a discretionary account, enabled by power of attorney to engage in trades on behalf of a customer without individual approval of each trade. The Court held, “The district court was correct that the text of Rule 155.4(b)(2)(i) does not limit its application to principals. But nothing extends its application beyond principals either. On its face, then, the text of Rule 155.4(b)(2)(i) is at best ambiguous. It did not give fair notice to the Defendants absent further guidance from the CFTC, and for nearly four decades, no such guidance came.” The Court held that the fair notice doctrine required an absence of ambiguity in the statement of culpable conduct.

• Johnson v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 22-30699, appeal from E.D. La.
  • Higginson, J. (Smith, Southwick, Higginson), Title VII, employment discrimination
  • Affirming summary judgment dismissal of plaintiff’s Title VII harassment and retaliation claims against former employer LSU Health Sciences Center.
  • The Court held that LSUHSC’s response to the plaintiff’s complaint about harassment was prompt enough to be reasonably calculated to end the harassment, including moving her work station away from the harasser within two working days of her report, and ultimately included permanently moving the harasser to another location. The Court held that the plaintiff did not succeed in showing that LSUHSC knew or should have known of pre-Incident harassing conduct, particularly in light of her sworn testimony that conflicted with her affidavit submitted in opposition to the summary judgment motion.
  • The Court held that the plaintiff failed to rebut LSUHSC’s evidence of a non-discriminatory reason for temporarily moving her work station to a storage room, such as to maintain her retaliation claim.

• Ford v. Anderson County, 22-40559, appeal from E.D. Tex.
  • per curiam (King, Willett, Douglas), qualified immunity, § 1983
  • Affirming in part and reversing in part qualified immunity summary judgment to dismiss § 1983 claims brought by survivors of pretrial detainee who had died while in custody; vacating denial of plaintiffs’ motion for leave to file third amended complaint to include additional supervisory and municipal liability claims; and affirming denial of plaintiffs’ motion for sanctions.

• Louisiana v. U.S. Department of Energy, 22-60146, on petition for review of DOE order
  • Oldham, J. (Clement, Oldham, Wilson), administrative law, standing
  • Granting petition for review of DOE orders adopting new rules repealing prior rules that had created new classes of regulated residential dishwashers and laundry machines, and remanding for further action to the agency, on holding that the Repeal Rule was arbitrary and capricious.
  • The Court held that the state petitioners had standing to challenge the Repeal Rule on a theory of compression in market availability due to the preclusion of the availability of washing machines and dishwashers with certain features that had been allowed under the prior rules. “DOE’s presently existing energy and water requirements would not have applied to the short-cycle appliance classes created in the 2020 Rules and eliminated by the Repeal Rule. That means petitioners have lost the opportunity to purchase faster and more efficacious appliances. The States are injured to the extent of that lost opportunity. And the magnitude of this lost option is not material to the standing inquiry because the inquiry turns only on whether an injury actually exist[s].”
  • The Court held that DOE failed to reasonably consider all relevant issues and reasonably explain its decisions in the Repeal Rule. “(a) [It] is unclear that DOE has statutory authority to regulate water use in dishwashers and clothes washers. But even if DOE has water-usage authority over the relevant appliances, the Department (b) failed to adequately consider the negative consequences of the Repeal Rule, including the substitution effects of energy-and-water-wasting rewashing, prewashing, and handwashing. And in all events, the 2022 DOE (c) failed to adequately consider the impact of the energy conservation program on performance characteristics.”
  • The Cour held that, under the EPCA, it appeared that DOE can regulate energy use in certain energy-using products and water-use in certain non-energy-using products, but not both energy- and water-use in any product. However, the Court then held that it need not reach that question because (1) the petitioners did not ask the Court to, and (2) the Repeal Rule was arbitrary and capricious for other reasons.

Unpublished

• Welsh v. Lamb County, 22-10311, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), prisoner suit
  • Vacating dismissal of Texas civil commitment detainee’s claims, and remanding for reconsideration.

• Tamnu v. Garland, 22-60337, petition for review of BIA order
  • per curiam (Duncan, Wilson, Mazzant, by designation), immigration
  • Dismissing Cameroonian citizen’s petition for review of BIA order denying motion to reopen.

• Chaisson v. U.S., 23-10551, appeal from N.D. Tex.
  • per curiam (Davis, Wilson, Ramirez), tax, jurisdiction
  • Affirming dismissal of plaintiff’s suit for tax refund for lack of subject matter jurisdiction.

• U.S. v. Fuentes-Ayala, 23-50548, appeal from W.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming conviction and 46-month sentence for illegal reentry.

• Metreveli v. Garland, 23-60171, petition for review of BIA order
  • per curiam (Barksdale, Graves, Oldham), immigration
  • Denying Georgian citizen’s petition for review of BIA order affirming the denial of: asylum; withholding of removal; and protection under the Convention Against Torture.