January 11, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Texas v. U.S. Environmental Protection Agency, 17-60088, c/w 21-60673, on petitions for review of EPA orders
    • Southwick, J. (King, Elrod, Southwick), Elrod, J., dissenting; Clean Air Act, administrative law
    • Denying petitions for review of EPA order designating two Texas counties (Rusk and Panola) as in non-attainment for the NAAQS for sulfur dioxide, primarily due to emissions from a coal-burning power plant, and from order denying reconsideration of the non-attainment designation, and from EPA withdrawal of a proposed correction of the non-attainment designation.
    • The Court observed that the EPA’s two changes of course during the procedural history of the non-attainment designation and challenges to that designation “perhaps reflect[] how quadrennial elections have consequences.” The Court then held that the EPA’s actions survived APA analysis. The Court held that the EPA’s non-attainment designation was not arbitrary or capricious. The Court rejected the petitioners’ argument that disparate treatment of the Sierra Club’s modeling as to other counties did not require vacatur of the non-attainment designation. The Court held that the EPA did not go beyond its statutory authority when it rejected the petitioners’ argument that it should have designated the counties as “unclassifiable” and awaited the results of future monitoring.
    • Judge Elrod dissented, as she would exercise the ability to go behind EPA’s scientific analysis of the technical data and arrive at a different conclusion as to sulfur dioxide attainment, paraphrasing (without attribution) the Mos Eisley spaceport scene from Star Wars Episode IV: A New Hope: “Invoking the phrases ‘scientific judgment’ and ‘technical expertise’ does not discharge the Government’s obligations under the Administrative Procedure Act. I do not deny that federal agencies have expertise and should use their best judgment. But all too often, agencies cite their technical knowledge in an attempt to fend off judicial scrutiny into their decision making. One can almost see the shrouded bureaucrat, who, sensing danger, waives his hand and murmurs: ‘These aren’t the APA violations you’re looking for.’ The agency’s desired response: ‘Move along. Move along.’ I am not content to do so.”
  • Earnest v. Palfinger USA, Inc., 22-30582, appeal from W.D. La.
    • Southwick, J. (Southwick, Engelhardt, Wilson), maritime law
    • Reversing summary judgment in favor of owner of oil platform against servicer of platform lifeboats regarding enforceability of indemnity provision in contract to inspect and repair lifeboats, as to indemnification for claims arising from deaths of two workers who were killed when a lifeboat cable failed. The Court held that the contract to inspect and repair lifeboats on the oil platform located on the Outer Continental Shelf was a maritime contract, meaning that maritime law would apply rather than Louisiana law and that the indemnity provision would therefore be enforceable.

Unpublished

  • U.S. v. Alexander, 21-30720, appeal from E.D. La.
    • per curiam (Stewart, Dennis, Wilson), criminal, sufficiency of evidence
    • Affirming conviction of conspiracy to possess heroin and cocaine hydrochloride, distribution of heroin, possessing a firearm as a felon, and structuring transactions to evade federal reporting requirements.
  • U.S. v. Varela-Avila, 22-30574, appeal from W.D. La.
    • per curiam (Jones, Haynes, Douglas), criminal, sentencing
    • Affirming imposition of sentence enhanced from the statutory maximum for illegal reentry.
  • U.S. v. Boberg, 23-10714, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Brown, 23-20237, appeal from S.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kirk, 23-30048, appeal from M.D. La.
    • per curiam (Jones, Haynes, Douglas), criminal, forfeiture
    • Vacating forfeiture portion of sentence on conviction of healthcare fraud and remanding for detailed findings by district court, and affirming imposition of fine amount.
  • U.S. v. Landry, 23-30318, appeal from W.D. La.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming 210-month sentence on conviction of receipt of child pornography.
  • Dixon v. D.R. Horton, Inc., 23-30800, appeal from M.D. La.
    • per curiam (Elrod, Southwick, Haynes), class action, Class Action Fairness Act
    • Affirming remand under CAFA’s local controversy exception in construction defect dispute.
  • Hostetter v. Aransas County, 23-40252, appeal from S.D. Tex.
    • per curiam (King, Haynes, Graves), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claim as frivolous.
  • Haynes v. Turner Bass & Associates, 23-40290, appeal from E.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), Americans with Disabilities Act
    • Affirming dismissal of ADA claims against self-storage company.
  • Dominguez-Alvarado v. Garland, 23-60287, petition for review of BIA order
    • per curiam (Jolly, Engelhardt, Douglas), immigration
    • Denying Honduran citizen’s petition for review of BIA order affirming IJ’s denial of application for asylum, withholding, and protection under the Convention Against Torture.
  • U.S. v. Smith, 23-60315, appeal from N.D. Miss.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming 240-month sentence on conviction of conspiracy to distribute methamphetamine and engaging in a monetary transaction involving criminally derived property.