March 7, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Renew Home Health v. National Labor Relations Board, 22-60584, appeal from NLRB
    • Stewart, J. (Jones, Stewart, Duncan), labor law
    • Denying in part and granting in part petition for review of NLRB decision that the petitioner’s RN Case Managers are not NLRA-exempt supervisors and that the petitioner violated the NLRA by creating an impermissible oral workplace rule, threatening employees who exercised protected activity, interrogating staff about concerted activities, and terminating an RN.
    • The Court held that the petitioner failed to meet its burden to show that the NLRB’s decision that the RN Case Managers were not exempt supervisors under the NLRA was not supported by substantial evidence in the record.
    • The Court held that the NLRB overstepped its own precedent in determining that the petitioner had put in place an impermissible workplace rule against engaging in concerted action, because the evidence showed that the petitioner had only communicated the alleged rule to one employee and Board precedent requires that a rule be communicated to more than one employee to be a prohibited workplace rule.
    • The Court held that the Board’s determination that the petitioner had communicated an impermissible threat of reprisal to an employee for communicating workplace concerns to other employees was not supported by substantial evidence.
    • The Court, however, upheld the NLRB’s determination that the petitioner had engaged in an unlawful interrogation of employees for participating in the protected activity of discussing and communicating a group email to petitioner’s management outlining concerns related to treatment of patients under COVID-19 protocols.
    • The Court also upheld the NLRB’s determination that the petitioner had unlawfully terminated one of the RNs who had been coordinating discussion of the employees’ complaints.
  • Espinal v. City of Houston, 23-20075, appeal from S.D. Tex.
    • Duncan, J. (Higginbotham, Higginson, Duncan), qualified immunity
    • Affirming dismissal on qualified immunity grounds of plaintiff’s false arrest, malicious prosecution, and assault claims against city police officers after altercation and arrest.
    • The Court held that the indictment of the plaintiff by a grand jury insulated the defendant officers from Fourth Amendment liability under the independent intermediary doctrine.
  • Free Speech Coalition v. Paxton, 23-50627, appeal from W.D. Tex.
    • Smith, J. (Higginbotham, Smith, Elrod), Higginbotham, J., dissenting in part; First Amendment, preemption
    • Vacating district court’s preliminary injunction of Texas’s requirement for pornography websites to have an age-verification requirement, affirming district court’s preliminary injunction of Texas’s requirement to place a health warning on such websites, and remanding for further proceedings.
    • The Court held that rational-basis review applied to the state’s requirements for pornographic websites (“that regulation of the distribution to minors of speech obscene for minors is subject only to rational-basis review … is good law and binds this court today”), and that “the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography.” The Court also held that the age-verification requirement was not preempted by § 230 of the federal Communications Decency Act.
    • The Court then held that, under the commercial-speech doctrine, the health-warnings requirement constituted unconstitutional compelled speech under National Institute of Family & Life Advocates v. Becerra (NIFLA), 585 U.S. 755, 766 (2018).
    • Judge Higginbotham dissented in part, as he would find that strict scrutiny should apply to the age-verification requirement and that the requirement would not survive strict scrutiny. “Although the statute incorporates Miller v. California’s definition of obscenity, H.B. 1181 limits access to materials that may be denied to minors but remain constitutionally protected speech for adults. It follows that the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.”

Unpublished

  • U.S. v. Gonzalez, 22-20481, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Sealed Appellant v. Sealed Appellee, 22-50707, appeal from W.D. Tex.
    • per curiam (Richman, Jones, Ho), sealed records
    • Vacating district court’s order unsealing records in litigation arising from claims of online harassment and unauthorized posting of explicit images, and remanding for determination under the correct standard.
  • Aldridge v. Corporate Management, Inc., 22-60264, appeal from S.D. Miss.
    • per curiam (Jones, Douglas, Doughty, by designation), False Claims Act
    • Vacating award of attorneys’ fees and costs to relator after government successfully took up FCA claim for fraudulent Medicare billings, and remanding for reconsideration in light of partial vacatur of underlying judgment.
  • Leonard v. Parkland Memorial Hospital, 23-10654, appeal from N.D. Tex.
    • per curiam (Stewart, Graves, Oldham), prisoner suit
    • Dismissing as frivolous Texas state prisoner’s appeal from dismissal of § 1983 claims.
  • U.S. v. Wilson, 23-10748, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Perez, 23-10772, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rodriguez, 23-10784, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Thomas, 23-10859, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Affirming conviction for possession of a firearm by a felon.
  • U.S. v. Wair, 23-10922, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Daniels v. PennyMac Loan Services, L.L.C., 23-20328, appeal from S.D. Tex.
    • per curiam (Duncan, Wilson, Ramirez), foreclosure
    • Affirming summary judgment in favor of defendants on plaintiff’s suit arising from foreclosure.
  • Kinsale Insurance Co. v. Sea Brook Marine, L.L.C., 23-30436, appeal from E.D. La.
    • Davis, J. (Davis, Willett, Oldham), insurance
    • Affirming summary judgment in favor of insurer on coverage dispute, on basis of lack of compliance with condition precedent.
  • Marsh v. Chas Kurz & Co., Inc., 23-30460, appeal from E.D. La.
    • per curiam (Stewart, Duncan, Engelhardt), personal tort
    • Affirming summary judgment in asbestos exposure case, including upholding exclusion of plaintiff’s expert reports.
  • Edwards v. 4JLJ, L.L.C., 23-40189, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), Fair Labor Standards Act, Rule 60(B)
    • Reversing district court’s grant of 60(b) motion for new trial on basis that the motion was filed after the one-year limitations period, and remanding with instructions to dismiss.
  • U.S. v. Martinez-Rubio, 23-40588, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Franklin, 23-50101, appeal from W.D. Tex.
    • per curiam (Dennis, Wilson, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Valeviano, 23-50348, appeal from W.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cardoza, 23-50397, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hernandez-De Escobar v. Garland, 23-60360, petition for review of BIA order
    • per curiam (Wiener, Stewart, Douglas), immigration
    • Denying Salvadoran citizens’ petition for review of BIA order upholding the immigration judge’s (IJ’s) denial of asylum, withholding of removal, and protection under the CAT.