Take the Fifth

Designated for publication

• Arevalo v. Bondi, 24-60349, c/w 24-60620, petition for review of BIA order
  • Engelhardt, J. (Wiener, Engelhardt, Oldham) (oral argument withdrawn), immigration
  • Denying Guatemalan citizen’s petitions for review of BIA denials of his motion to reopen removal proceedings and motion to reconsider.
  • The Fifth Circuit denied Oscar Rene Rosa Arevalo’s petitions for review of the Board of Immigration Appeals’ denials of his motions to reopen and reconsider his removal proceedings. Rosa Arevalo, a Guatemalan national removed in 2004 after a drug-possession conviction, sought to reopen his case following the 2023 vacatur of that conviction under a 2021 Illinois law permitting post-conviction relief for immigration consequences. The Board found his motion untimely and not subject to equitable tolling, reasoning that he failed to show due diligence in pursuing his rights during the nineteen years since his removal or even in the two years after the Illinois law’s enactment. The Fifth Circuit agreed, holding that the Board did not abuse its discretion in denying both the motion to reopen and the motion to reconsider because Rosa Arevalo provided no evidence of timely or diligent action to preserve his claims.

Unpublished decisions

• Washington v. Edwards Lifesciences, L.L.C., 25-10357, appeal from N.D. Tex.
  • per curiam (Wiener, Engelhardt, Oldham) (oral argument withdrawn), Title VII, COVID-19, employment, summary judgment, footnotes
  • Vacating summary judgment dismissal of plaintiff’s employment discrimination claims arising from defendant’s denial of request for accommodations from vaccine mandate, where district court did not consider plaintiff’s evidence in opposition to summary judgment based on local rule prohibiting the citation of legal authority or evidence in footnotes; and remanding for further proceedings.
  • Edwards Lifesciences fired sales representative Washington after she refused to comply with a revised COVID-19 vaccine mandate that covered employees meeting healthcare workers outside hospitals, despite her earlier granted religious exemption for mandate for in-hospital service. She sued under Title VII for religious discrimination, harassment, and retaliation. When the district court enforced a standing order barring most footnote citations, it declined to consider her summary-judgment filings—submitted entirely with footnote citations—and granted summary judgment for Edwards without allowing her to refile. On appeal, the Fifth Circuit held that the court’s refusal to consider her materials for a non-willful formatting error violated Federal Rules 56 and 83 by depriving Washington of her right to seek and defend against summary judgment. Finding the sanction disproportionate and an abuse of discretion, the appellate court vacated the judgment and remanded for further proceedings.

• Stark v. Edwards Lifesciences, L.L.C., 25-10358, appeal from N.D. Tex.
  • per curiam (Wiener, Engelhardt, Oldham) (oral argument withdrawn), Title VII, COVID-19, employment, summary judgment, footnotes
  • Vacating dismissal of employment claims similar to those in Washington v. Edwards Lifesciences, L.L.C., supra, on same basis–the Northern District’s footnote rule–and remanding for further proceedings.

• Preziosi v. Louisiana Department of Children and Family Services, 25-30021, appeal from W.D. La.
  • per curiam (Davis, Stewart, Ramirez) (no oral argument), sovereign immunity, Freedom of Information Act, § 1983
  • Affirming dismissal of claims against state Department of Children and Family Services and against agency officers in their official capacities, modifying dismissal of agency to with prejudice and dismissal of claims against officer defendants to without prejudice.

• Coupel v. Kfoury, 25-30048, appeal from E.D. La.
  • per curiam (Higginbotham, Ho, Douglas) (oral argument withdrawn), res judicata, property rights
  • Affirming dismissal of claims regarding ownership of property as precluded by settlement of prior possessory action between the parties.
  • This case concerns a long-running dispute over ownership of immovable property in Assumption Parish, Louisiana. The controversy began when the Kfoury family filed a possessory action in 2008, claiming possession of the property for thirty years. During that proceeding, both parties entered into a court-recited settlement agreement that resolved issues of “possession and ownership” and established a boundary to be marked by their surveyors. When the Coupels failed to comply, the state court enforced the compromise in a 2009 judgment adopting the Kfourys’ survey. The Louisiana Court of Appeal affirmed, and the state supreme court denied review. In subsequent bankruptcy proceedings, the Kfourys again prevailed, with the bankruptcy and district courts holding that the automatic stay did not void the state judgment and giving it full effect. When the Coupels later filed another bankruptcy petition in 2022 and brought a new petitory action to assert ownership, the bankruptcy court dismissed it on res judicata grounds, and the district court affirmed.
  • On further appeal, the Fifth Circuit likewise affirmed. It held that Louisiana’s res judicata law governed and that all five statutory elements were met: the 2009 judgment enforcing the settlement was valid and final, the parties were identical, and the ownership dispute arose from the same transaction settled in the earlier litigation. The panel rejected the Coupels’ contention that the oral compromise was invalid or could not bar ownership claims because it arose from a possessory action. The court explained that Louisiana Civil Code articles on compromise allow parties to resolve any differences, including ownership, and that the record made clear the parties intended the settlement to settle both possession and ownership completely. Because that compromise was incorporated into a valid and final judgment, it precluded relitigation of ownership in a later petitory action.

• U.S. v. Haile, 25-30061, appeal from M.D. La.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Affirming 240-month sentence on conviction of assaulting a federal officer in performance of official duty.

• Winans v. McKay, 25-30199, appeal from W.D. La.
  • per curiam (King, Higginson, Wilson) (no oral argument), property rights
  • Affirming dismissal of plaintiff’s petitory action on parties’ cross-motions for summary judgment.

• James v. East Baton Rouge City Parish, 24-30318, appeal from M.D. La.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), prisoner suit, § 1983
  • Affirming dismissal of pretrial detainee’s repetitive § 1983 claims, and issuing warning of future sanctions.

• Johnson v. Smith, 24-30791, appeal from E.D. La.
  • per curiam (Higginbotham, Ho, Douglas) (oral argument withdrawn), qualified immunity
  • Affirming summary judgment dismissal of plaintiff’s federal claims arising from alleged excessive force incident, on qualified immunity grounds, and dismissal without prejudice of plaintiff’s pendent state-law claims.

• U.S. v. Silva-Cerna, 25-40422, appeal from S.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Peterson v. Lottery.com, 25-50261, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Ramirez) (oral argument withdrawn), Fair Labor Standards Act, breach of contract, employment
  • Affirming dismissal of plaintiff employee’s FLSA and fraud and fraudulent inducement claims; reversing dismissal of breach of contract, quantum meruit, and unjust enrichment claims; and remanding for further proceedings.
  • Peterson, a technology executive at Lottery.com, sued his employer after the company stopped paying him in July 2022 despite his continued work maintaining the firm’s operations and paying certain company expenses himself. Hired in 2020 as Vice President of Research & Development and later promoted to Executive Vice President of Technology with a $350,000 salary, Peterson alleged that he remained employed but uncompensated for nearly two years, even as Lottery.com repeatedly promised to pay him. He brought claims under the Fair Labor Standards Act (FLSA) for unpaid minimum wages, along with state-law claims for breach of contract, fraud and fraudulent inducement, quantum meruit, and unjust enrichment. The district court dismissed all claims, concluding that Peterson was exempt from the FLSA, that he failed to allege an enforceable contract or actionable fraud, and that his equitable claims were legally insufficient.
  • On appeal, the Fifth Circuit affirmed in part and reversed in part. The court agreed that Peterson adequately pleaded an FLSA minimum wage claim but held he was exempt from FLSA coverage as a highly compensated employee even after pay ceased, citing its prior decision in Wells v. Lottery.com. However, the panel reversed the dismissal of his breach of contract claim, finding that his written employment agreement and offer letter plausibly alleged an enforceable at-will employment contract. The court also reinstated Peterson’s alternative quantum meruit and unjust enrichment claims, concluding that he could plead those theories in the alternative and had adequately alleged unpaid services conferring a benefit on Lottery.com. But it affirmed dismissal of the fraudulent inducement claim because the alleged misrepresentations occurred after Peterson entered into his contract, defeating causation.

• U.S. v. Whipple, 24-50894, appeal from W.D. Tex.
  • per curiam (Higginbotham, Ho, Douglas) (no oral argument), criminal, sentencing, restitution
  • Affirming conditions of lifetime supervised release to follow 600-month sentence, and $54,000 restitution award on conviction of four counts of Production of Child Pornography, five counts of Distribution of Child Pornography, and one count of Possession of Child Pornography.