February 14-16, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Raytheon Co., 21-11060, appeal from N.D. Tex.
    • Dennis, J. (Stewart, Dennis, Higginson), Higginson, J., dissenting; False Claims Act
    • Affirming dismissal for lack of subject-matter jurisdiction of former employee’s False Claims Act claims against former employer, claiming retaliation for reporting fraudulent misrepresentations made to the Navy, and summary judgment dismissal of remaining claim; holding that “the district court correctly held Department of the Navy v. Egan, 484 U.S. 518 (1988), bars review of Johnson’s claims implicating the merits of the decision to revoke his security clearance and that Johnson failed to present a prima facie case of retaliation for the remaining claim.”
    • Judge Higginson dissented, as he “would not extend Egan’s narrow statutory bar to insulate from judicial review adverse actions taken by government contractors—here, an allegedly pretextual and retaliatory action against a whistleblower.”
  • Adams v. City of Harahan, 22-30218, appeal from E.D. La.
    • Stewart, J. (Stewart, Dennis, Southwick), due process
    • Reversing district court’s denial of 12(c) motion to dismiss police captain’s suit against the arising from discipline charges by Police Chief and notification of the Jefferson Parish District Attorney’s office of the charges and the resulting placement of the plaintiff on the Giglio list prior to the plaintiff’s ability to invoke appeal procedures from the discipline charges; holding that “the City never violated Adams’s liberty interest in pursuing a career in law enforcement.”
  • U.S. v. Johnson, 22-30242, c/w U.S. v. Dinkins, 22-30249, appeal from W.D. La.
    • Higginbotham, J. (Higginbotham, Smith, Elrod), Elrod, J., concurring; criminal, guilty plea, restitution
    • Affirming $3.5 million restitution award entered against each co-defendant on basis of guilty plea agreement, “hold[ing] Defendants to the plea bargain they made.”
    • Judge Elrod concurred, “writ[ing] separately to highlight some concerns with the restitution calculation.”
  • Shaw v. Restoration Hardware, Inc., 22-30277, appeal from E.D. La.
    • Dennis, J. (Richman, Stewart, Dennis), breach of contract
    • Affirming 12(b)(6) dismissal of breach of contract, detrimental reliance, and unjust reliance claims brought against furniture retailer by furniture designer.
  • Rhone v. City of Texas City, 22-40551, appeal from S.D. Tex.
    • Southwick, J. (Smith, Southwick, Higginson), Smith, J., dissenting; § 1983, mootness
    • Remanding to district court the summary judgment dismissal of apartment owner’s constitutional claims against city arising from abatement order for nuisance conditions found at plaintiff’s apartments, in order for the district court to conduct an evidentiary hearing on the City Attorney’s role in the abatement order.
    • Judge Smith dissented. He would find the case moot and therefore in need of dismissal; alternatively, he would affirm the dismissal on the merits.
  • Baker v. City of McKinney, 22-40644, appeal from E.D. Tex.
    • per curiam (voting against en banc rehearing: Richman, Smith, Stewart, Southwick, Haynes, Higginson, Willett, Engelhardt, Wilson, Douglas, Ramirez, JJ.; voting for en banc rehearing: Jones, Elrod, Graves, Ho, Duncan, Oldham, JJ.); Elrod, Oldham, JJ., jointly dissenting from denial of en banc rehearing; takings
    • Denying rehearing en banc of October panel opinion reversing judgment that city violated Takings Clause when it refused to compensate a homeowner for damage to her home by law enforcement actions in responding to a hostage-taking at her home.
    • Judges Elrod and Oldham jointly dissented from the denial of rehearing. Noting that the panel “denied [plaintiff’s] claim based on the novel holding that history and tradition recognize a ‘necessity’ exception to the otherwise broad protections of the Takings Clause,” they opined, “We are unsure whether such a privilege exists. Even if it does, we find the panel’s reasoning unsatisfactory—perhaps unsurprisingly because the panel reached its ostensibly originalist conclusion without the benefit of briefing on the historical evidence.”
  • U.S. v. Gordon, 22-50043, appeal from W.D. Tex.
    • Stewart, J. (Stewart, Clement, Ho), criminal, speedy trial
    • Affirming conviction of aggravated sexual abuse of a child, traveling to engage in illicit sexual conduct, and abusive sexual contact with a child, holding that a series of “ends-of-justice continuances related to COVID-19” did not violate the defendant’s speedy trial guarantees under the Sixth Amendment.
  • Wilson v. Midland County, 22-50998, appeal from W.D. Tex.
    • en banc per curiam; § 1983
    • Granting en banc rehearing of December panel opinion affirming Heck dismissal of plaintiff’s claim for deprivation of due process when she discovered, after serving her complete sentence such that habeas relief was not available, that a prosecutor who worked on her case was also a law clerk for the judge who ruled over her case. The panel, in an admittedly “unseemly” result, acknowledged that the “ancient symbols of fairness and clear-sightedness—the very moral force underlying a just legal system—are mocked if one side can rig the game by calling its own balls and strikes,” and that the prosecutor/law clerk’s “conflict of interest was undeniable, and it flattened Wilson’s constitutional guarantee of a fair trial”; before holding that it was constrained by the rule of orderliness to follow Circuit precedent that the Heck bar is applicable even to noncustodial plaintiffs “even if it’s practically impossible for them to do so.”
  • Alejos-Perez v. Garland, 22-60555, petition for review of BIA order
    • Clement, J. (Clement, Haynes, Oldham), Oldham, J., concurring; immigration
    • Denying Mexican citizen’s petition for review of BIA’s final order of removal that found his Texas conviction for possessing a synthetic cannabinoid made him removable, agreeing with BIA that petitioner failed to make the showing that “there was a ‘realistic probability’ that Texas would use the state statute he was convicted under to prosecute the possession of drugs that are not criminalized under federal law, meaning that his conviction would not be a removable offense.”
    • Judge Oldham concurred, decrying the categorial approach when the petitioner was convicted of violating a state law relating to possession of a federally controlled substance. “Rather [than review the specific conviction of the petitioner], we are required to ignore Alejos-Perez’s case and instead adjudicate a series of hypothetical cases to determine whether Texas law proscribes possession of any substances that are not federally controlled, and if so, whether the State actually uses the law to prosecute people for possessing those non-federally-controlled substances. That is the precise opposite of how Article III’s judicial power works.”
  • Port Arthur Community Action Network v. Texas Commission on Environmental Quality, 22-60556, appeal from Texas Commission on Environmental Quality
    • per curiam (Wiener, Graves, Douglas), administrative law
    • Withdrawing November 14, panel opinion vacating Texas Commission on Environmental Quality’s order granting an emissions permit to a new natural gas facility and remanding for further administrative proceedings; and substituting new opinion certifying to the Texas Supreme Court the following question:
      • “Does the phrase ‘has proven to be operational’ in Texas’s definition of ‘best available control technology’ codified at Section 116.10(1) of the Texas Administrative Code require an air pollution control method to be currently operating under a permit issued by the Texas Commission on Environmental Quality, or does it refer to methods that TCEQ deems to be capable of operating in the future?”
  • Treme v. St. John the Baptist Parish Council, 23-30084, appeal from E.D. La.
    • Southwick, J. (Southwick, Engelhardt, Wilson), mineral law, takings
    • Affirming dismissal of plaintiffs’ regulatory takings claim against parish arising from zoning determination for clay-extraction operation, holding that the mineral lease that would enable the extraction of the clay had yet to come into effect, but modifying dismissal to be without prejudice.
  • Law Office of Rogelio Solis PLLC v. Curtis, 23-40125, appeal from S.D. Tex.
    • per curiam (voting against en banc rehearing: Richman, Stewart, Southwick, Haynes, Graves, Higginson, Wilson, Douglas, Ramirez; voting for en banc rehearing: Jones, Smith, Elrod, Ho, Duncan, Engelhardt, Oldham, JJ.); Oldham, J., dissenting (joined by Jones, Smith, Elrod, Ho, Duncan, Engelhardt, JJ.); bankruptcy
    • Denying en banc rehearing of October 6 panel opinion 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.
    • Judge Oldham dissented from the denial of rehearing, observing: “This case implicates federalism, bankruptcy, the rule of orderliness, and the party-presentation principle. Today our en banc court chooses to follow circuit precedent over a controlling, unanimous Supreme Court decision. And it apparently does not matter that our circuit precedent embraces a form of federal-common-law property that has no basis in our post-Erie federal system.”
  • U.S. v. Ortega, 23-50100, appeal from W.D. Tex.
    • Clement, J. (Stewart, Clement, Ho), criminal, sentencing
    • Vacating sentence, holding that the district court erroneously applied a two-level sentencing enhancement for obstruction of justice, and remanding for resentencing on conviction of possession of child pornography.
  • La Union del Pueblo Entero v. Abbott, 23-50201, appeal from W.D. Tex.
    • Smith, J. (Smith, Graves, Wilson), Graves, J., dissenting; legislative privilege, election law
    • Reversing district court’s compelling of production of documents from Harris County Republican Party to members of the Texas Legislature and the Texas state executive branch in lawsuit arising from passage of Texas S.B. 1 regarding voter registration, voting by mail, poll watchers, and other aspects of election integrity and security, holding that the materials were subject to the legislative privilege, and remanding for further proceedings.
    • Judge Graves dissented. He would hold that the majority mis-weighed the factors in determining the right of non-parties to appeal. “There is no authority for the majority’s perversion of legislative privilege by expanding its application, based exclusively on speculation and without so much as a privilege log, to include any random party volunteer or operative who ever communicated with a legislator on a given topic.”

Unpublished

  • U.S. v. Cardenas, 19-40425, c/w 21-40543, appeal from S.D. Tex.
    • per curiam (King, Jones, Oldham), criminal, sentencing
    • Affirming denial of motion for sentence reduction due to change in Sentencing Guidelines.
  • Bullock v. University of Texas at Arlington, 22-10013, appeal from N.D. Tex.
    • per curiam (Davis, Dennis, Higginson), Title IX, Americans with Disabilities Act, Rehabilitation Act, timeliness
    • Reversing dismissal of student’s Rehabilitation Act claims against university as barred by the statute of limitations, and remanding for further proceedings.
  • Weisshaus v. Teichelman, 22-11099, appeal from N.D. Tex.
    • Graves, J. (Smith, Graves, Wilson), qualified immunity
    • Affirming summary judgment dismissal of § 1983 claims arising from traffic stop, on qualified immunity grounds.
  • U.S. v. Walker, 22-30659, appeal from W.D. La.
    • per curiam (King, Jones, Oldham), habeas corpus, ineffective assistance of counsel
    • Affirming denial of § 2255 petition urging claims of ineffective assistance of counsel.
  • U.S. v. Weaver, 22-30794, appeal from E.D. La.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sufficiency of evidence
    • Affirming conviction of carjacking and aiding and abetting a carjacking, brandishing and using a firearm during and in relation to a crime of violence, and being a felon in possession of a firearm.
  • U.S. v. Blankenship, 22-40619, appeal from E.D. Tex.
    • per curiam (Jones, Barksdale, Elrod), criminal, sentencing
    • Affirming denial of continuance motions, convictions, and life sentences for co-defendants convicted of violent crimes in aid of racketeering, kidnapping, and conspiracy to commit kidnapping.
  • U.S. v. Limane, 23-10112, c/w 23-10114, c/w 23-10115, c/w 23-10117, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming convictions and sentences on revocation of supervised release.
  • U.S. v. Baez, 23-10489, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Carrasco, 23-10578, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Zapata, 23-10611, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Plata-Ybarra, 23-10622, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Valdez-Ruiz, 23-10625, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Overman, 23-10639, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Affirming guilty plea conviction of possession of a firearm by a felon.
  • U.S. v. Cooper, 23-10643, appeal from N.D. Tex.
    • per curiam (Jolly, Jones, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Davis, 23-10650, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Calzada, 23-10662, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Taylor, 23-10738, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Salmanzadeh, 23-10771, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Williams, 23-10807, appeal from N.D. Tex.
    • per curiam (Stewart, Graves, Oldham), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • Searcy v. Keller Independent School District, 23-10864, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), Title VII, employment discrimination
    • Affirming dismissal of employment discrimination claims as time-barred.
  • U.S. v. Ragsdale, 23-10948, appeal from N.D. Tex.
    • per curiam (Jones, Smith, Dennis), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Luedtke, 23-10968, appeal from N.D. Tex.
    • per curiam (Clement, Elrod, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Dennis v. Eastridge, 23-11005, appeal from N.D. Tex.
    • per curiam (Stewart, Graves, Oldham), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.
  • U.S. v. Obute, 23-20143, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Greer v. The Lancet, 23-20538, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), voluntary dismissal
    • Vacating with-prejudice dismissal of plaintiff’s claims that he had noticed a voluntary dismissal of, and remanding with instructions to explain if there had been a prior dismissal of an action based on the same claim or to enter without-prejudice dismissal.
  • U.S. v. Mincey, 23-30147, appeal from W.D. La.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Affirming conviction of aggravated sexual abuse.
  • Abbott v. U.S., 23-30259, appeal from W.D. La.
    • per curiam (Higginbotham, Stewart, Southwick), Federal Tort Claims Act
    • Affirming summary judgment dismissal of federal prisoner’s FTCA claims arising from alleged sexual harassment by other inmates.
  • U.S. v. Gant, 23-30369, appeal from W.D. La.
    • per curiam (King, Haynes, Graves), criminal, guilty plea, sentencing
    • Affirming guilty plea conviction of numerous drug offenses and 210-month sentence.
  • Victor v. Louisiana, 23-30391, appeal from E.D. La.
    • per curiam (Jones, Southwick, Ho), prisoner suit
    • Affirming dismissal of Louisiana state prisoner’s § 1983 claims.
  • Nguyen v. U.S. Postal Service, 23-30547, appeal from E.D. La.
    • per curiam (King, Haynes, Graves), Federal Tort Claims Act
    • Affirming dismissal of plaintiff’s FTCA claim against Postal Service arising from loss of mailed jewelry item, but remanding with instructions to modify dismissal to one without prejudice.
  • U.S. v. Lee, 23-30563, appeal from W.D. La.
    • per curiam (Jolly, Higginson, Duncan), criminal, search and seizure
    • Affirming conviction of possession with intent to distribute cocaine and possession of a firearm by a felon, upholding denial of motion to suppress evidence from a “trash pull” at his residence.
  • U.S. v. Batiste, 23-30582, appeal from E.D. La.
    • per curiam (Smith, Graves, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Moore, 23-30597, appeal from W.D. La.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • Bradford v. Walmart Stores Texas, L.L.C., 23-40138, appeal from E.D. Tex.
    • per curiam (Stewart, Clement, Ho), personal tort
    • Affirming summary judgment for defendant on plaintiff’s slip-and-fall case.
  • Wingfield v. Unknown Garner, CO, 23-40547, appeal from E.D. Tex.
    • per curiam (Haynes, Willett, Duncan), prisoner suit
    • Granting Texas state prisoner’s motion to proceed IFP on appeal of dismissal of ADA claim.
  • U.S. v. Gonzalez, 23-50102, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, guilty plea
    • Affirming guilty plea conviction of transportation of illegal aliens.
  • U.S. v. Pastrana, 23-50212, appeal from W.D. Tex.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Zubia, 23-50214, appeal from W.D. Tex.
    • per curiam (Jolly, Jones, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Galicia-Pena, 23-50315, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Martinez, 23-50418, appeal from W.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Diaz, 23-50466, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Navarro-Trevino, 23-50485, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Niavez, 23-50598, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Alvarez v. Texas Workforce Commission, 23-50677, appeal from W.D. Tex.
    • per curiam (Jones, Smith, Dennis), unemployment benefits, sovereign immunity
    • Affirming dismissal of claims against Texas Workforce Commission arising from denial of unemployment benefits.
  • Sumrall Capital, L.L.C. v. Miller, 23-60121, appeal from S.D. Miss.
    • per curiam (Smith, Graves, Wilson), commercial
    • Affirming judgment in favor of plaintiff (no description of claims by Court).
  • Mata v. Garland, 23-60221, petition for review of BIA order
    • per curiam (Barksdale, Engelhardt, Wilson), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing her appeal and affirming the immigration judge’s (IJ) denial of: asylum, withholding of removal, and protection under the Convention Against Torture.
  • Singh v. Garland, 23-60335, petition for review of BIA order
    • per curiam (Willett, Duncan, Ramirez), immigration
    • Denying Indian citizen’s petition for review of BIA order dismissing his appeal and affirming the Immigration Judge’s (IJ’s) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.