Take the Fifth

Designated for publication

• Vuoncino v. Forterra, Inc., 24-10308, appeal from N.D. Tex.
  • per curiam (Jones, Oldham, Hendrix, by designation), Sarbanes-Oxley Act, employment law, timeliness, Rule 59(e)
  • Reversing dismissal of employee’s Sarbanes-Oxley anti-retaliation claim against employer, but affirming dismissal of claim against employer’s parent company, and remanding for further poceedings.
  • The case involves a Sarbanes-Oxley Act (SOX) whistleblower retaliation claim brought by Vuoncino, a corporate finance executive who worked in various leadership roles for subsidiaries of Forterra, Inc. After Forterra acquired his employer and allegedly pressured executives to manipulate financial records ahead of a public offering, Vuoncino raised concerns about fraudulent rebate accounting practices. He objected multiple times internally and was subsequently fired in January 2017. Vuoncino filed a SOX complaint with OSHA and later sued Forterra, individual executives, and sought to amend his complaint to include additional affiliated entities he claimed may have been his actual employer.
  • The district court denied Vuoncino’s motion to amend, holding that the new claims were time-barred and did not relate back to the original complaint. It concluded that Vuoncino had waited too long to try to add Foundry and Holdings as defendants and failed to demonstrate that he had mistakenly omitted them from the original filing. The court also rejected his equitable tolling argument, finding that he had not diligently pursued the additions and had opportunities earlier to correct any uncertainty about his employer’s identity. These determinations were upheld on appeal, as the proposed amendments were deemed untimely and futile.
  • However, the Fifth Circuit reversed the district court’s dismissal of the SOX claim against Fabrication. Vuoncino’s detailed allegations plausibly supported that he was employed by Fabrication, given his titles, duties, reporting structure, and termination tied directly to restructuring within Fabrication. While the court affirmed dismissal of SOX claims against Forterra and the individual executives—holding that Vuoncino failed to sufficiently allege either an alter ego theory or that Forterra directly employed him—it found that Fabrication could plausibly be his employer under common law agency principles, which govern SOX claims.
  • Finally, the Fifth Circuit upheld the denial of Vuoncino’s motion for reconsideration, finding no manifest error of law or newly discovered evidence. The documents Vuoncino relied on were available to him before judgment, and his arguments merely repeated those previously rejected by the district court. Because Rule 59(e) does not permit such re-litigation of resolved issues, the district court did not abuse its discretion in denying the motion. Thus, while most of Vuoncino’s case was dismissed, his SOX retaliation claim against Fabrication was revived for further proceedings.

• Linares-Rivas v. Bondi, 24-60186, petition for review of BIA order
  • Elrod, C.J., (Elrod, King, Graves, JJ.), immigration
  • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order ’ upholding the immigration judge’s denial of his application for cancellation of removal.
  • Linares-Rivas, a Mexican citizen seeking cancellation of removal, argued that deportation would cause exceptional hardship to his U.S. citizen children. Although his prior counsel submitted late evidence, it was considered by the immigration judge, who ultimately denied cancellation, citing negative discretionary factors such as DWI convictions, long-term unlicensed driving, and a lack of tax documentation. Linares-Rivas then claimed ineffective assistance of counsel and challenged the denial of a continuance, but these arguments were not properly raised in his appellate brief to the Board of Immigration Appeals (BIA) and were therefore unexhausted under 8 U.S.C. § 1252(d)(1).
  • The court held it lacked jurisdiction to review the discretionary denial of cancellation of removal under § 1252(a)(2)(B)(i), as it was based on the agency’s judgment rather than legal error. Linares-Rivas’s arguments about hardship and moral character did not impact the discretionary basis for the denial, and so were not reviewable. His claim that the BIA failed to address ineffective assistance raised in his notice of appeal also failed, as it was not reiterated in the operative appellate brief. While Linares-Rivas was found credible, the immigration judge determined that his negative factors outweighed the hardship claims, denying relief both on statutory and discretionary grounds.

Unpublished decisions

• U.S. v. Alvarez, 24-10739, appeal from N.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Britton, 24-10955, appeal from N.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Guillard v. SHF 1 Metro at Greenway, L.L.C., 24-20260, appeal from S.D. Tex.
  • per curiam (Elrod, King, Graves), landlord-tenant law
  • Affirming dismissal of claims arising from plaintiff’s eviction.

• U.S. v. Brumfield, 24-30388, appeal from W.D. La.
  • per curiam (Wiener, Douglas, Ramirez), criminal, sentencing
  • Affirming application of bodily injury sentencing enhancement.

• Arvie v. Cathedral of Faith Missionary Baptist Church, 24-30759, appeal from W.D. La.
  • per curiam (Wiener, Douglas, Ramirez), sec. 1983
  • Affirming dismissal of pro se sec. 1983 claims against more than ninety defendants involved in a prior state court litigation against the plaintiff.

• U.S. v. Ross, 24-30761, appeal from W.D. La.
  • per curiam (Jolly, Jones, Willett), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Banks, 24-40221, c/w 24-40295, appeal from E.D. Tex.
  • per curiam (Wiener, Douglas, Ramirez), criminal, sentencing, forefeiture
  • Affirming 168-month sentence and forfeiture order on conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.

• Frosch v. Alsobrook, 24-40662, appeal from E.D. Tex.
  • per curiam (Stewart, Dennis, Haynes), qualified immunity
  • Affirming denial of qualified immunity summary judgment on plaintiff’s excessive force claim.

• U.S. v. Peek, 24-50307, appeal from W.D. Tex.
  • per curiam (Stewart, Dennis, Haynes), criminal, sentencing
  • Affirming 300 month sentence on conviction of four counts of receiving child pornography.

• U.S. v. Reyna-Nino, 24-50830, appeal from W.D. Tex.
  • per curiam (Wiener, Higginson, Ho), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Castaneda v. Planet Fitness, Inc., 24-51017, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Southwick), sec. 1983
  • Affirming dismissal of plaintiff’s various civil rights claims arising from the denial of his gym membership.

• Sosa-Espinal v. Bondi, 24-60413, petition for review of BIA order
  • per curiam (Barksdale, Stewart, Ramirez), immigration
  • Denying Honduran citizens’ petition for review of BIA order affirming an immigration judge’s (IJ) denial of Sosa-Espinal’s application for asylum, which listed Romero-Sosa as a derivative beneficiary, and their separate applications for withholding of removal and protection under the Convention Against Torture.