Take the Fifth

Designated for publication

• U.S. v. Rose, 22-10571, appeal from N.D. Tex.
  • per curiam (Elrod, Dennis, Higginson), habeas corpus, Armed Career Criminal Act
  • Vacating dismissal of § 2255 petition challenging ACCA-enhanced sentencing, on the basis that a new decision from the Texas Court of Criminal Appeals that abrogated prior Fifth Circuit precedent that Texas-law robbery by threat and aggravated robbery by threat qualified as ACCA predicate offenses; and remanding for further proceedings.

• Alexis Marine, L.L.C. v. RLI Insurance Co., 23-30078, appeal from E.D. La.
  • Elrod, C.J. (Elrod, Jones, Barksdale), insurance
  • Affirming summary judgment for insurer on basis that it was prejudiced by the delay in notice of a possible claim.

• Texas v. Trump, 23-40671, appeal from S.D. Tex.
  • Ramirez, J. (Clement, Graves, Ramirez), administrative law, Administrative Procedure Act, major questions doctrine
  • Reversing district court’s permanent injunction of executive order (issued by President Biden, with President Trump now substituted in) and Department of Labor final rule implementing the EO, which instructed federal agencies to require parties with which they contract to pay their workers a $15/hour minimum wage; and remanding for further proceedings.
  • The Court held that the EO was a permissible exercise of the President’s authority under the Federal Property and Administrative Services Act of 1949. “Together, the statute’s plain language sets forth two requirements for the President to ‘prescribe policies and directives’ under § 121(a): (1) the President must subjectively determine that the policy or directive prescribed is (a) indispensable, vital, essential, or requisite (b) to cause at least one provision listed in 40 U.S.C. § 111 to be implemented; and (2) the policy or directive the President prescribes must be objectively harmonious, compatible, or otherwise not inconsistent with the provisions listed in 40 U.S.C. § 111.”
  • After determining that the EO was withing the authority of FPASA, the Court also held that the major questions doctrine did not foreclose the President’s action. Because the Court had held that the statute was unambiguous, it held that there was no issue of “linguistic clarity” regarding employment of the major questions doctrine. The Court also noted, “The government is less restricted when exercising its proprietary authority as opposed to its regulatory authority. … It is questionable whether the major questions doctrine applies to an exercise of the government’s proprietary (i.e., nonregulatory) authority.”

• Pie Development, L.L.C. v. Pie Carrier Holdings, Inc., 24-60155, appeal from S.D. Miss.
  • per curiam (Higginbotham, Willett, Ho), res judicata, trade secrets
  • In a matter having disappointingly nothing to do with pie, the Court affirmed the dismissal of a second trade secrets lawsuit (involving an app for procuring workers’ compensation insurance, not pie) on res judicata grounds, where the dismissal of the first suit had been without prejudice and had been subject to an order allowing the plaintiffs 30 days to amend but instead they had appealed that dismissal and it had been affirmed.
  • “The judgment dismissing the claims in Pie I without prejudice was indisputably final. Pie Development admitted as much when it appealed that judgment[.] … Notwithstanding the clear finality of Pie I, Pie Development argues that Pie I cannot be a final judgment for res judicata purposes because, as a dismissal without prejudice, it was not a final judgment on the merits. It is true that dismissals without prejudice are not typically considered decisions on the merits. … When a prior action is dismissed without prejudice and the plaintiff, declining the opportunity to amend the complaint, appeals, the dismissal without prejudice converts to a dismissal with prejudice and constitutes a final judgment on the merits for res judicata purposes.”

Unpublished

• Campbell v. Coppell Independent School District, 24-10318, appeal from N.D. Tex.
  • per curiam (Higginbotham, Willett, Ho), Title VI, Title IX, § 1983
  • Affirming dismissal of discrimination, retaliation, and due process claims by parents of white, male student who had complained about the school district’s placement of their son in a disciplinary program after he had made a non-criminal death-threat post on social media about a teacher who had assigned their class to write about a “diverse” atomic theory scientist.

• U.S. v. Warren, 24-30200, appeal from E.D. La.
  • per curiam (Wiener, Ho, Ramirez), criminal, sentencing
  • Affirming 130-month sentence on conviction of possession with the intent to distribute 500 grams or more of a mixture or substance containing methamphetamine and 40 grams or more of a mixture or substance containing fentanyl.

• U.S. v. Rivadeneira, 24-30355, appeal from E.D. La.
  • per curiam (King, Southwick, Engelhardt), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• U.S. v. Blake, 23-30691, appeal from W.D. La.
  • per curiam (Higginbotham, Willett, Ho), criminal
  • Affirming conviction for possession of a firearm by a felon.

• U.S. v. Ortega, 24-50215, c/w U.S. v. Galeas, 24-50220, appeal from W.D. Tex.
  • per curiam (Graves, Engelhardt, Oldham), criminal, sentencing, sufficiency of evidence
  • Affirming convictions and sentences on conviction for involvement in “a for-profit operation that smuggled illegal aliens into the United States and held them in stash houses until their families paid him.”

• Bradley v. Gatehouse Media Texas Holdings, II, 23-50646, appeal from W.D. Tex.
  • per curiam (Southwick, Haynes, Graves), breach of contract, deceptive trade practices
  • Reversing in part and vacating in part summary judgment dismissal of plaintiff’s breach of contract and deceptive trade practices claims against newspaper arising from newspaper’s violating of alleged agreement to keep the plaintiff’s advertisement in the newspaper anonymous; affirming dismissal of claim for intentional infliction of emotional distress; and remanding for further proceedings.

• Puac v. McHenry, 24-60298, petition for review of BIA order
  • per curiam (Barksdale, Stewart, Ramirez), immigration
  • Dismissing in part and denying in part Guatemalan citizen’s petition for review of BIA order denying his motion to reopen and terminate proceedings.

• Gomez v. Garland, 21-60348, petition for review of BIA order
  • per curiam (King, Southwick, Engelhardt), immigration
  • Denying Mexican citizen’s petition for review of BIA order affirming the denial of asylum, withholding of removal, and protection under the Convention Against Torture.

• Rodriguez v. McHenry, 22-60482, petition for review of BIA order
  • per curiam (Higginbotham, Willett, Ho), immigration
  • Denying Mexican citizen’s petition for review of BIA orders of petitioner’s removal, denying untimely motion to reopen removal proceedings, and denying motion to reconsider.