June 26, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Banks v. Spence, 22-11252, appeal from N.D. Tex.
    • Smith, J. (Smith, Graves, Wilson); Graves, J., dubitante; § 1983, amendment
    • Affirming denial of untimely motion to amend, where § 1983 plaintiff failed to adequately explain the justification for his untimeliness.
    • Judge Graves filed a dubitante opinion. “I agree that Banks failed to give an adequate excuse for his failure to diligently seek leave to amend his complaint. So I acquiesce in the decision to affirm the judgment. I am reluctant because amendment of his complaint was arguably unnecessary. But that argument was never raised. … I am doubtful that Banks’s disturbing allegations should fail, and his case should end, because he lost a motion to amend a complaint that needed no amending.”
  • National Association of Manufacturers v. SEC, 22-51069, appeal from W.D. Tex.
    • Jones, J. (Richman, Jones, Ho), administrative law
    • Reversing district court’s summary judgment in favor of SEC on challenge to SEC’s 2022 rescission of 2020 rule regulating businesses that provide proxy voting advice to institutional shareholders of public corporations, vacating the 2022 rescission in part, and remanding to agency.
    • “By rescinding the 2020 Rule, the SEC acted arbitrarily and capriciously in two ways. First, the agency failed adequately to explain its decision to disregard its prior factual finding that the notice-and-awareness conditions posed little or no risk to the timeliness and independence of proxy voting advice. Second, the agency failed to provide a reasonable explanation why these risks were so significant under the 2020 Rule as to justify its rescission. These shortcomings require vacatur of the 2022 Rescission, but only to the extent it rescinded the notice-and-awareness conditions.”
  • First Baptist Church of Iowa v. Church Mutual Insurance Co., 23-30514, appeal from W.D. La.
    • Ramirez, J. (Willett, Wilson, Ramirez), insurance
    • Affirming in part and reversing in part district court’s judgment after bench trial in favor of insured on coverage claim for Hurricane Laura damage, awarding damages, statutory penalties, attorneys’ fees, and costs.
    • As to the amount of replacement-cost coverage, the Court held that the policy was unambiguous that the replacement cost must be based on the cost to replace at the time of loss, rather than at the time of payment, and therefore vacated and remanded for recalculation of the replacement-cost amount.
    • The Court held that the district court did not err in finding that the insurer failed to adjust the claim and in disregarding the insurer’s estimate of damages. The Court also addressed whether there was clear error in various damage items, finding that the cost of electrical repairs in excess of the electrician’s invoice was clearly erroneous and that the award for slab repairs was clearly erroneous, but that costs for repairing the parsonage, mitigation of water damage by ServPro, removal and replacement of exterior brickwork, HVAC replacement, and repairs to a vacant building were not clearly erroneous.
    • The Court held that the district court did not err in awarding statutory penalties for bad faith adjustment of the claim.
  • In re Sealed Petitioner, 24-50415, appeal from W.D. Tex.
    • Wilson, J. (Smith, Southwick, Wilson), mandamus, attorney-client privilege
    • Denying state agency’s petition for mandamus to direct the district court to vacate orders annulling the agency’s attorney-client privilege for matters implicated in a grand jury investigation of alleged wrongdoing by senior agency personnel.
    • The Court rejected a rule that the attorney-client privilege can never apply in the context of a criminal investigation into state agency activities. “Much as it does in non-governmental settings, the attorney-client privilege protects agencies’ communications that were in confidence and conducted for the purpose of providing legal advice[.] If anything, the traditional rationale for attorney-client privilege applies with special force in the government context. Government officials who are expected to uphold and execute the law—and who may face criminal prosecution for failing to do so—must be able freely to seek and receive informed legal advice. The attorney-client privilege thereby operates to effectuate, not hinder, the public interest. Accordingly, we reject the categorical rule that a state government has no attorney-client privilege that can be invoked in response to a grand jury subpoena.”
    • Nevertheless, the Court held that mandamus was inappropriate, because the novelty of the issue in this Circuit counseled that there was not a “clear and indisputable error” in the district court’s reliance on such a per se rule in reliance on another Circuit’s decision.
    • The Court held that the denial of mandamus relief was buttressed by the district court’s alternative holding that the crime-fraud exception justified the orders annulling the privilege, where the DOJ’s evidence made at least a prima facie case that the exception is implicated.

Unpublished

  • Hogan v. Southern Methodist University, 22-10433, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), COVID-19, breach of contract
    • Affirming dismissal of student’s breach of contract claims against university arising from online-class protocols.
  • U.S. v. Granados, 22-11181, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Ho), criminal, Confrontation Clause, sentencing, Sixth Amendment
    • Affirming convictions and sentences for conspiracy to defraud the United States and other substantive offenses arising from tax preparation services; rejecting arguments regarding scope of cross-examination of a witness, impeachment of a witness with prior arrests, calculation of loss amount, and violation of right to self-representation.
  • Cope v. Coleman County, 23-10414, appeal from N.D. Tex.
    • per curiam (Smith, Haynes, Douglas); Smith, J., dissenting; municipal liability
    • Affirming dismissal of episodic-acts-or-omissions claim against county, but vacating dismissal of conditions-of-confinement claim against county, in claims arising from county inmate’s suicide while in custody, and remanding for further proceedings.
    • Judge Smith dissented, as he would have affirmed the summary judgment dismissal in full.
  • Conner v. Kelly, 23-11225, appeal from N.D. Tex.
    • per curiam (Smith, Dennis, Southwick), COVID-19
    • Affirming dismissal of employee’s claims against airline and airline personnel that the airline’s masking and COVID-19 vaccination policies were unconstitutional.
  • Thibodeaux v. Bernhard, 23-30405, appeal from W.D. La.
    • per curiam (Jones, Dennis, Douglas), maritime law
    • Affirming district court’s denial of motion to dismiss on the basis that admiralty jurisdiction attached to tort that occurred on a lake in Louisiana’s Atchafalaya Basin where “[t]he lake is susceptible to use in its ordinary condition as a highway of interstate commerce through its unity with the Atchafalaya River.”
  • U.S. v. Smith, 23-50189, appeal from W.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • White v. Patriot Erectors, L.L.C., 23-50524, appeal from W.D. Tex.
    • Ashe, J. (Elrod, Ramirez, Ashe, by designation), Fair Labor Standards Act
    • Affirming judgment after bench trial in favor of employee on his FLSA overtime claims against employer and awarding unpaid compensation, liquidated damages, and attorneys’ fees.
  • U.S. v. Ramos-Carrera, 23-50634, appeal from W.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Vargas-Martinez, 24-40028, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Zaragoza, 24-40046, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Torres-Ibarra, 24-50041, appeal from W.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Gandara-Ortega, 24-50172, appeal from W.D. Tex.
    • per curiam (Dennis, Wilson, Ramirez), criminal, sentencing
    • Affirming 15-month sentence on conviction of illegal reentry.
  • U.S. v. Stubbs, 24-60050, appeal from S.D. Miss.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
    • Affirming sentence on revocation of supervised release.