July 26-29, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Airlines for America v. Department of Transportation, 24-60231, appeal from DOT rule
    • Duncan, J. (Haynes, Willett, Duncan), administrative law
    • Granting stay pending review of DOT rule regulating airlines’ disclosure of fees to consumers during the booking process, and expediting review. (Judge Haynes would only grant a brief administrative stay so that the expedited merits panel could decide the issue of stay).
    • The Court held that the petitioners made a strong showing that the rule exceeds DOT’s authority; the statutory authority provides that the DOT may “investigate and decide whether an air carrier … has been or is engaged in an unfair or deceptive practice or an unfair method of competition in … the sale of air transportation.” 49 U.S.C. § 41712(a). The DOT, upon such determination, may adjudicate the finding and then order the air carrier to stop the practice. The Court held, “As Petitioners correctly put it, ‘[t]he Rule doesn’t just prohibit—it prescribes.’ And it does so outside the adjudicatory process set out by § 41712(a). That is, the Secretary does not purport to ‘find,’ following ‘notice and … a hearing,’ that a carrier’s online sale ‘practice’ is ‘unfair or deceptive’ and then order a carrier to ‘stop’ it. See 49 U.S.C. § 41712(a). Rather, the Rule essentially enacts a code of online disclosure practices. That is not authorized by the statute.”

Unpublished

  • U.S. v. Rios-Mares, 23-11181, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Barnett, 23-20174, appeal from S.D. Tex.
    • per curiam (Jolly, Southwick, Duncan), criminal, sentencing, restitution
    • Affirming 210-month sentence and conviction of distribution of child pornography, receipt of child pornography, possession of child pornography, and destruction of property; affirming restitution award as to victim injured by defendants’ crimes; and vacating restitution award as to victim not injured by defendants’ crimes.
  • U.S. v. Santes-Cortez, 23-50617, appeal from W.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Herrera-Cuyuch v. Garland, 24-60034, petition for review of BIA order
    • per curiam (Barksdale, Haynes, Wilson), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order upholding the denial of asylum, withholding of removal, and protection under the Convention Against Torture.
  • In re Louisiana Public Service Commission, 24-60113, appeal from FERC order
    • per curiam (Davis, Southwick, Duncan), mandamus, administrative law
    • Denying Public Service Commission’s renewed mandamus petition to compel FERC to resolve a ratemaking dispute with the operator of a nuclear power plant, based on the FERC counsel’s representations as to a timeline for resolution of the disputes.