March 14, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Texas v. Nuclear Regulatory Commission, 21-60743, appeal from NRC order
    • per curiam (voting against en banc rehearing: Richman, Jones, Smith, Elrod, Haynes, Ho, Duncan, Engelhardt, Wilson; voting for en banc rehearing: Stewart, Southwick, Graves, Higginson, Willett, Douglas, Ramirez; recused: Oldham, J.); Jones, J., concurring in denial of rehearing (joined by Smith, Elrod, Ho, Engelhardt, Wilson, JJ.); Higginson, J., dissenting from denial of rehearing (joined by Graves, Douglas, Ramirez, JJ.); administrative law, standing
    • Denying en banc rehearing of panel decision that granted petition for review of NRC order and vacated license for temporary storage for spent nuclear fuel, holding that the NRC does not have authority under the Atomic Energy Act to license temporary nuclear waste storage facilities.
    • Judge Jones concurred in the denial of en banc rehearing, opining that the panel was correct in identifying two bases of authority to review the NRC’s action to redirect storage of nuclear waste from Yucca Mountain to temporary storage in Texas–that the petitioners are aggrieved parties and that the NRC had acted ultra vires. “We continue to adhere to our position that the judiciary has not only the authority but the duty to review the NRC’s actions, which may threaten significant environmental damage in the Permian Basin, one of the largest fossil fuel deposits in the world.”
    • Judge Jones rejected the idea that the only “parties aggrieved” could be parties who intervened in the licensing proceedings before the NRC, particularly where the petitioners had attempted to intervene there multiple times but “were repeatedly rebuffed by the agency. If this argument is accepted, in other words, the NRC controls the courthouse door through its authority to determine who may be ‘parties’ to licensing proceedings.” Judge Jones also opined that this case presented the exemplar for the ultra vires exception to the “parties aggrieved” requirement.
    • Judge Higginson dissented from the denial of en banc rehearing. He would find that the “parties aggrieved” requirement for judicial review under the Hobbs Act would limit the ability of the petitioners to have standing to seek judicial review, and that to hold otherwise creates a circuit-split. “This exercise of jurisdiction has grave consequences for regulated entities’ settled expectations and careful investments in costly, time-consuming agency proceedings, inviting spoilers to sidestep the avenues for participation that Congress carefully created to prevent this uncertainty.” He would also eliminate the ultra vires exception as an impermissible judge-made equitable exception to a statutory jurisdictional requirement.

Unpublished

  • U.S. v. Tran, 23-10865, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Affirming conviction for sexual exploitation of a child for the purpose of producing a visual depiction and receipt of child pornography.
  • U.S. v. Saenz, 23-10970, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Kirby Inland Marine, L.P. v. Sanchez, 23-20312, appeal from S.D. Tex.
    • per curiam (Wiener, Haynes, Higginson), maritime law
    • Remanding from appeal of district court’s order denying motion to lift limitation under the Limitation of Liability Act, for the purpose of allowing the district court to consider the seaman-claimants’ motion to dismiss in the first instance.
  • U.S. v. Barragan-Espino, 23-30607, appeal from W.D. La.
    • per curiam (Jolly, Higginson, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Henry v. Louisiana, 23-30770, appeal from M.D. La.
    • per curiam (Willett, Duncan, Ramirez), prisoner suit
    • Affirming dismissal of Louisiana state prisoner’s § 1983 claims.
  • U.S. v. McCoy, 23-40335, appeal from S.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Shaw v. The United Mexican States, 23-40422, appeal from S.D. Tex.
    • per curiam (Davis, Ho, Ramirez), personal tort
    • Affirming dismissal of suit for failure to prosecute.
  • Shumaker v. Vilsack, 23-40492, appeal from S.D. Tex.
    • per curiam (Clement, Duncan, Douglas), § 1983
    • Affirming dismissal of plaintiff’s claims.
  • U.S. v. Anaya-Berrones, 23-40498, appeal from S.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Demetrio-Jimenez, 23-50688, c/w 23-50690, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming 46-month sentence on conviction of illegal reentry.