February 9, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Klick v. Cenikor Foundation, 22-20434, appeal from S.D. Tex.
    • Douglas, J. (Graves, Higginson, Douglas), Fair Labor Standards Act
    • Granting petition for panel rehearing, and substituting new opinion in place of August 16, 2023, panel opinion that had affirmed the district court’s order certifying a collective action under the FLSA for a claim by the facility’s drug rehabilitation patients who were assigned jobs and required to work; instead, the substituted opinion remands to the district court for consideration of the plaintiffs’ employee status under the correct legal standard, and to consider whether the defendant’s offset defense precludes collective certification.
  • U.S. v. Abbott, 23-50632, appeal from W.D. Tex.
    • per curiam (en banc Court); Haynes, J., concurring without written opinion; Jones, J., concurring (joined by Wilson, J.); Willett, J., concurring (joined by Richman, Elrod, Southwick, Wilson, JJ.); Douglas, J., concurring (joined by King, Stewart, Haynes, Graves, Higginson, Ramirez); Ho, J., dissenting (joined by Smith, Duncan, Engelhardt, Oldham, JJ.); Oldham, J., dissenting (joined by Smith, Ho, Duncan, Engelhardt, JJ.); Rivers and Harbors Act
    • Denying Texas’s motion for an emergency stay of trial proceedings pending en banc review, treating the motion as a request for mandamus and the requested relief as “not mandamus-able.” This case arises from Texas’s installation of a floating barrier in the Rio Grande to stop migrants from crossing the border via river. The U.S. sued Texas for creating an obstruction to a navigable waterway without authorization under the Rivers and Harbors Act, and the district court granted a preliminary injunction. A divided panel of the Court affirmed the preliminary injunction, and the Court voted to take the panel opinion en banc, which is set for the Court’s May 2024 en banc slot. Subsequently, the district court conducted a status conference and set a March 19 trial date, with accelerated pretrial deadlines.
    • Judge Jones concurred with the denial of the emergency motion for stay. “Reading the approximately 20 page transcript of the district court’s pretrial conference persuades me that the court determined to rush to trial and, for whatever reason, to parallel this court’s en banc review. If the court’s goal was to flesh out the record from the preliminary injunction hearing, pushing its draconian discovery and trial timetable defeats that purpose. And if the court thought this court had little to do on en banc review that might change the legal analysis it had previously used, then the district court was uninformed. Finally, if the district court thought that going to trial during en banc briefing by the parties and preparation by this court’s judges somehow expedites ultimate resolution of this case, it makes no sense. I do not speculate on the court’s possible motives, only the litigation posture that he created. But because the plausible goals are erroneous, I would hold that the district court abused its discretion in its trial setting and pretrial deadlines. Judge Willett’s order for a further scheduling conference is the least that should be accomplished. See In re JPMorgan Chase & Co., 916 F.3d 494, 504 and n. 24 (5th Cir. 2019)(denying mandamus, but holding that ‘[w]e issue this published opinion as a holding …under our supervisory authority to correct errant caselaw from the district courts under our jurisdiction.’) I reluctantly agree to deny mandamus.”
    • Judge Willett also concurred. “The State of Texas has moved to stay trial proceedings pending en banc rehearing in this case. We would treat Texas’s motion as a petition for mandamus, as Texas requests in the alternative. In our view, the district court’s rushed schedule, while questionable, is not mandamus-able. * * * Despite our misgivings about the district court’s decisions, we cannot say that the rigorous criteria for mandamus are fulfilled. The district court’s scheduling orders, although questionable, fall shy of showing a ‘persistent disregard of the Rules of Civil Procedure’ or a pattern of noncompliance that could justify mandamus relief. … [T]he district court’s decision to expedite trial, despite our impending en banc rehearing, is within its jurisdiction, does not tread on the dominion of other branches of government, and will not permanently close our courthouse doors to the parties. The district court’s preliminary injunction remains stayed by order of this court. And we fully expect the district court’s permanent injunction decision (whichever way it goes) to be swiftly appealed following trial on the merits.”
    • Judge Douglas concurred in the judgment only, and would find nothing in the way of misgivings about the district court’s expedited trial schedule. “Here, the district court sought to expedite trial on the merits to ‘provide a complete and full factual as well as legal record’ for both our court and the Supreme Court to review, if necessary. … Texas itself, in opposing the preliminary injunction, stressed the urgency with which it seeks to remedy the ‘invasion’ at the border. Yet now, Texas seeks to prolong the termination of these proceedings by seeking intervention from this court at the eleventh hour without so much as awaiting the district court’s own order on the motion to stay.”
    • Judge Ho dissented. “This case is about the fundamental right of self-defense—and in more ways than one. At the heart of this en banc appeal is a State’s sovereign authority to defend itself and its citizens. But before we can even get to that appeal, we must first decide an emergency motion that calls on us to defend our own authority as an en banc appellate court. … I would grant mandamus relief, out of respect for the sovereign interests asserted by the State of Texas, and out of respect for our own authority as an en banc appellate court.”
    • Judge Oldham dissented. “In response to our decision to rehear this case en banc, the district court suspended the federal rules, directed the parties to try a monumental federalism dispute in mere weeks, and rejected objections before the defendant could even raise them. In tumultuous times, it is particularly important that our Nation’s courts provide calm, orderly, and dispassionate forums for resolving disputes. I would grant mandamus to restore that order to the district court’s proceeding.”

Unpublished

  • Hicks v. Perry, 22-40755, appeal from E.D. Tex.
    • per curiam (Elrod, Willett, Duncan), prisoner suit
    • Dismissing for lack of appellate jurisdiction Texas state prisoner’s appeal from magistrate’s determination that genuine issues of fact exist as to conduct in a prisoner’s visitation room while he was a pretrial detainee.
  • U.S. v. Walters, 22-50774, c/w 22-51023, appeal from W.D. Tex.
    • per curiam (Elrod, Willett, Duncan), criminal, sentencing
    • Vacating sentence for conviction of possession of a firearm by a felon, and remanding for recalculation of sentencing range under the Sentencing Guidelines.
  • U.S. v. Huddlestar, 23-10756, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Tapia v. Union Pacific Railroad Co., 23-20139, appeal from S.D. Tex.
    • per curiam (King, Jones, Oldham), personal tort
    • Vacating summary judgment for defendant in negligence case arising from death of plaintiffs’ son, and remanding for further proceedings.
  • U.S. v. Burks, 23-20352, appeal from S.D. Tex.
    • per curiam (Willett, Duncan, Wilson), criminal
    • Affirming guilty plea conviction for possession of a firearm by a felon.
  • U.S. v. Campos-Basurto, 23-40173, appeal from E.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cagle, 23-40416, appeal from E.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rivera-Carrion, 23-40501, appeal from S.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.