Designated for publication
- Queen v. U.S., 22-30294, appeal from W.D. La.
- Jolly, J. (Jolly, Smith, Haynes), Federal Tort Claims Act
- Reversing district court’s dismissal of former federal inmate’s FTCA claim arising from alleged assault by prison officials; rejecting premise that there may be a de minimis injury exception from tort liability; remanding for further proceedings.
- U.S. v. Fluitt, 22-30316, appeal from W.D. La.
- Dennis, J. (Dennis, Engelhardt, Oldham), Oldham, J., dubitante; appellate jurisdiction, standing, discovery
- Affirming interlocutory discovery order that certain evidence was not privileged, in face of non-parties’ objections to production of documents identified from a terabyte of seized documents reviewed by government “filter team” pursuant to a Protocol Order put in place in criminal prosecution.
- The Court held first that the Perlman exception allows appellate jurisdiction over an immediate appeal from a discovery order aimed at a third party. “While the Perlman exception arises most commonly in our caselaw in a situation where a grand jury has subpoenaed documents from a third party over the objections of the target of the grand jury investigation, we see no reason why the exception would not also apply in this case. Fluitt has moved—as ‘reformed’ by the magistrate judge—to compel production of materials in possession of the Government’s Filter Team over non-party HSE’s and non-party Satary’s assertions of privilege. In both kinds of cases, the party holding the disputed materials is different from the individuals or entities asserting privilege and, importantly, does not share the privilege holders’ interest in defying a court order.”
- The Court then held that the two non-parties had standing to challenge the discovery order here (and, hence, pursue appeal). The Court held that all three of the Searcy factors favored permitting standing of the non-parties here.
- On the merits, the Court held that the district court’s order of production was not an abuse of discretion. The Court upheld the magistrate’s requirement for the non-parties to sustain their assertions of privilege with a privilege log; held that there was no abuse of discretion in the finding that the privilege logs did not substantiate the assertions of privilege; and that the disclosure of documents already in the filter team’s possession was not analogous to the subpoena requirements under Rule 17.
- Judge Oldham issues a dubtante opinion, to express doubt as to the propriety of the use of “filter team protocols” employed by the Department of Justice to have a separate team of attorneys review seized documents for privilege; Judge Dennis had noted that this protocol was not an issue on appeal. “I have no idea what legal standards should apply to filter teams, which have no obvious foundation in the Federal Rules. … For all I know, the majority’s judgment might be correct. Nevertheless, I have serious concerns about the majority’s suggestion that this case should be evaluated under the plain, old rules that govern traditional discovery disputes and traditional privilege assertions. There is nothing traditional about filter teams.”
- Milteer v. Navarro County, 23-10872, appeal from N.D. Tex.
- Davis, J. (Davis, Smith, Haynes), employment discrimination, Title VII, Americans with Disabilities Act
- Vacating summary judgment in favor of County employer on plaintiff’s employment discrimination, failure to accommodate, and retaliation claims, and remanding for further proceedings.
- Paragon Asset Co. v. American Steamship Owners Mutual Protection and Indemnity Association, Inc., 23-40209, appeal from S.D. Tex.
- Higginson, J. (Higginbotham, Smith, Higginson), maritime law
- Affirming district court’s findings of liability that owner of vessel that broke free from its moorings during Hurricane Harvey was liable for damage to two vessels that it allided with, and that owner of unmoored vessel and owner of tug assigned to subsequently monitor vessel were liable for damage to research station the unmoored vessel allided with after it had first run aground and then refloated. The Court rejected application of a “towage law” standard of duty and rejected the challenge to the district court’s declining to apply a force majeure defense to the owner of the unmoored vessel.
Unpublished
- U.S. v. Huddlestar, 23-10774, appeal from N.D. Tex.
- per curiam (King, Haynes, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Savoy v. Stroughter, 23-30107, appeal from M.D. La.
- per curiam (Willett, Wilson, Ramirez), qualified immunity
- Affirming dismissal of prisoner’s excessive force claims on qualified immunity grounds.
- U.S. v. Smith, 23-30673, appeal from W.D. La.
- per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
- Affirming 140-month and 60-month consecutive sentences on conviction of possession with intent to distribute methamphetamine and to possession of a firearm in furtherance of drug trafficking.
- U.S. v. Porter, 23-30679, appeal from W.D. La.
- per curiam (Jolly, Higginson, Duncan), criminal, sentencing
- Affirming 84-month sentence on conviction of possession of a machine gun.
- Fric v. Allstate Life Insurance Co., 23-40244, appeal from S.D. Tex.
- per curiam (King, Jones, Oldham), Oldham, J., dissenting; insurance
- Affirming summary judgment in favor of life insurer that had declined benefits on basis of failure to pay premiums.
- Judge Oldham dissented, and would reverse the summary judgment dismissal of the plaintiff-beneficiary’s breach of contract claim, based on policy authorization of auto-debiting of premiums and non-sufficient-fund fees.
- U.S. v. Ratliff, 23-50472, appeal from W.D. Tex.
- per curiam (Higginbotham, Stewart, Southwick), criminal
- Affirming conviction of possession of a firearm by a felon.
- U.S. v. Romero-Ezquivel, 23-50865, c/w 23-50868, appeal from W.D. Tex.
- per curiam (Jones, Dennis, Southwick), criminal, sentencing
- Affirming conviction and sentence for illegal reentry and revocation of supervised release.
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