Take the Fifth

Designated for publication

• In re Alliance Lifeboats, L.L.C., No. 26-30091, appeal from E.D. La.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), Haynes, J., “simply joins in the denial” without separate concurring opinion; class action, mandamus, Fair Labor Standards Act
  • Denying writ of mandamus from district court’s certification of collective action under the Fair Labor Standards Act.
  • The Fifth Circuit denied the employer’s petition for a writ of mandamus seeking review of a district court order certifying a collective action under the Fair Labor Standards Act (FLSA). The underlying lawsuit was brought by a cook employed on Alliance liftboats who alleged that the company misclassified him and other vessel workers as “seamen,” thereby improperly exempting them from overtime requirements. After the district court conditionally certified a collective action of certain liftboat crew members, Alliance attempted to challenge that certification through interlocutory appeal and a § 1292(b) petition, both of which failed, and then sought mandamus relief. The Fifth Circuit held that mandamus is an extraordinary remedy available only when a party has no other adequate means of relief and a “clear and indisputable” right to the writ; because Alliance could challenge the certification and related issues on a direct appeal after final judgment, the company failed to meet that demanding standard. The court therefore denied the petition, emphasizing that the burdens of litigating a collective action and the non-appealable nature of certification orders do not justify mandamus when ordinary appellate review remains available.

• Deras v. Johnson & Johnson Services, Inc., 25-10977, appeal from N.D. Tex.
  • Wiener, J. (Smith, Wiener, Higginson) (no oral argument), Fair Labor Standards Act, Rule 60(b)
  • Vacating denial of Rule 60(b) motion to reopen case, and remanding for further proceedings.
  • The Fifth Circuit vacated and remanded a district court’s refusal to reopen a Fair Labor Standards Act case after it had been dismissed for failure to comply with a local-counsel rule. The plaintiff’s attorney, who was required by Northern District of Texas Local Rule 83.10(a) to appoint local counsel within fourteen days, missed the deadline due to a calendaring error, and the district court dismissed the suit without prejudice under Rule 41(b). When the plaintiff promptly moved to reopen the case under Federal Rule of Civil Procedure 60(b)(1) and obtained local counsel, the district court denied relief, reasoning that the plaintiff had not shown the dismissal without prejudice effectively operated as a dismissal with prejudice. Writing for the panel, Judge Wiener held that the district court abused its discretion by imposing this additional requirement, which was derived from cases reviewing Rule 41(b) dismissals rather than Rule 60(b) motions. Because the court failed to evaluate the proper “excusable neglect” factors governing Rule 60(b)(1) relief (from Pioneer and related precedent), the Fifth Circuit vacated the denials of the motions to reopen and remanded for the district court to apply the correct standard.

• Storey Minerals, Ltd. v. EP Energy E&P Co., L.P., 24-20477, appeal from S.D. Tex.
  • Engelhardt, J. (Elrod, Duncan, Engelhardt) (oral argument), bankruptcy
  • Affirming rulings against creditors on subject-matter jurisdiction, ripeness, and the merits of their adversary action and post-petition “administrative expense” claims.
  • This appeal arose from a dispute between South Texas landowners (the “MSB Owners”) and EP Energy, the operator of oil-and-gas leases on their land, during EP Energy’s Chapter 11 bankruptcy. The leases allowed EP Energy to extract hydrocarbons from the property. During the COVID-19-related collapse in oil prices in 2020, EP Energy temporarily halted production from wells in the Eagle Ford field—including wells on the leased property—for about forty days before resuming operations. After EP’s reorganization plan was confirmed in bankruptcy court, the landowners asserted that the temporary halt automatically terminated the leases under Texas law and the lease contracts. They argued that any production thereafter constituted trespass and sought damages as administrative expenses under 11 U.S.C. § 503(b)(1)(A).
  • To pursue that theory, the landowners filed a motion in the bankruptcy court requesting payment of administrative-expense claims based on alleged post-petition trespass damages. At the same time, they attempted to preserve the ability to litigate the underlying lease-termination and tort claims in state court. They contended that the bankruptcy court lacked jurisdiction to decide those issues or, alternatively, should abstain in favor of state-court adjudication. The bankruptcy court rejected those arguments, holding that the request for administrative-expense priority was a core bankruptcy proceeding and that resolving it necessarily required deciding whether the leases had actually terminated under Texas law.
  • After addressing jurisdiction, the bankruptcy court proceeded to the merits of the underlying state-law questions. It concluded that EP Energy’s temporary cessation of production did not terminate the leases because the lease agreements contained a provision allowing a temporary halt in production, and EP resumed operations well within the contractual grace period. Since the leases remained valid, EP’s continued drilling and production on the property was authorized rather than a trespass. Because the landowners’ theory of damages depended entirely on the leases having terminated, the bankruptcy court ruled that their asserted administrative-expense claims were unfounded and denied them.
  • The landowners appealed to the district court, again arguing that the bankruptcy court lacked authority to adjudicate the state-law issues and that the dispute was not ripe because their damages claims depended on hypothetical future litigation. The district court rejected those arguments and affirmed. It reasoned that a bankruptcy court must resolve the validity and amount of administrative-expense claims against the estate, and therefore necessarily may determine the legal issues—including state-law questions—underlying those claims.
  • On further appeal, the Fifth Circuit reviewed the bankruptcy court’s legal conclusions de novo and its factual findings for clear error. The court agreed that the bankruptcy court had proper subject-matter jurisdiction. Because the landowners themselves invoked § 503(b) and sought priority payment from the bankruptcy estate, their request constituted a core proceeding arising under the Bankruptcy Code, which bankruptcy courts are empowered to decide. Determining whether the landowners were entitled to such priority required deciding whether the leases had terminated and whether EP had trespassed, so resolving those issues fell squarely within the bankruptcy court’s jurisdiction.
  • Finally, the Fifth Circuit affirmed the bankruptcy court’s substantive ruling under Texas oil-and-gas law. The court held that the leases expressly permitted temporary interruptions in production and that EP resumed production well within the contractual 120-day window. As a result, the leases never terminated, EP’s activities on the property were authorized, and the landowners suffered no compensable trespass. Because the foundational premise of the administrative-expense claim failed, the bankruptcy court correctly denied the request for priority payment.

• U.S. v. Mendez-Lozano, 24-40631, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), Graves, J., concurring in judgment; criminal. sentencing
  • Affirming conviction and 460-month sentence on conviction of conspiracy to harbor aliens, five counts of concealing or harboring aliens, conspiracy to take hostages, five counts of hostage taking, and one count under the felon-in-possession statute.
  • The Fifth Circuit affirmed the conviction and sentence of Heriberto Mendez-Lozano, who was found guilty after a jury trial of multiple offenses arising from a scheme in which migrants were held at gunpoint and their families extorted for money. Police discovered Mendez-Lozano in a trailer with five undocumented migrants, along with a firearm and magazines. On appeal, Mendez-Lozano argued that the district court should have severed the felon-in-possession count and provided a limiting instruction about his prior felony, and he also challenged a four-level sentencing enhancement for acting as an “organizer or leader.” The court held that his conviction challenges were waived because his notice of appeal expressly limited the appeal to his sentence. Turning to the sentence, the panel concluded that the district court did not clearly err in applying the leadership enhancement under U.S.S.G. § 3B1.1(a), as the record plausibly supported the finding that he organized or led the criminal activity.
  • Judge Graves concurred only in the judgment because he disagreed with the majority’s conclusion that Mendez-Lozano waived any challenge to his conviction through the wording of his notice of appeal. In his view, Federal Rule of Appellate Procedure 3(c) governs the contents of a notice of appeal, and although the notice stated the appeal was limited to the sentence, the defendant’s briefing clearly raised arguments about the conviction, including the denial of severance and the absence of additional limiting instructions. Judge Graves emphasized that both parties treated Rule 3(c)(6) as a claims-processing rule rather than a jurisdictional bar, and the government itself did not argue that the notice of appeal constituted a waiver of the conviction issues. Because the government had not pressed waiver and the court generally does not consider arguments not raised in the briefs, Graves would have addressed the conviction arguments on the merits. Nonetheless, he agreed that the defendant ultimately could not prevail, so he concurred in affirming the judgment.

Unpublished decisions

• U.S. v. Fleeks, 25-10382, appeal from N.D. Tex.
  • per curiam (Haynes, Duncan, Ramirez) (oral argument), criminal, sentencing
  • Affirming sentence on revocation of supervised release.

• U.S. v. Davila, 25-10793, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Flores, 25-10805, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Waters, 25-10818, appeal from N.D. Tex.
  • per curiam (Elrod, Stewart, Higginson) (no oral argument), criminal, sentencing
  • Affirming conditions for supervised release for defendant convicted of possession of prepubescent child pornography.

• U.S. v. Driskill, 25-10902, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Dorado-Calderon, 25-10988, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Castillo-Dominguez, 25-11002, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Flores, 25-11087, appeal from N.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence on possession of a firearm by a felon.

• U.S. v. Walker, 25-20061, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming 97-month sentence on conviction of assaulting a federal officer and inflicting bodily injury.

• Mosti v. Tullis, 25-20084, appeal from S.D. Tex.
  • per curiam (Richman, Higginson, Oldham) (no oral argument), qualified immunity
  • Affirming qualified immunity dismissal of excessive force claim.

• Clark v. American National Property & Casualty Co., 25-20215, appeal from S.D. Tex.
  • per curiam (Haynes, Duncan, Ramirez) (no oral argument), insurance
  • Reversing summary judgment for insurer on claim against insurer for damage caused by aircraft pilot, finding genuine issue of material fact as to whether pilot was an insured.

• Chapman v. Selene Finance, L.P., 25-20235, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), foreclosure
  • Affirming dismissal of claims arising from foreclosure.

• Bradford v. SN Servicing Corp., 25-20275, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), foreclosure
  • Affirming dismissal of suit seeking to stop foreclosure.

• Young v. Texas Department of Criminal Justice, 25-20296, appeal from S.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.

• Guidry v. Louisiana Department of Public Safety, 24-30754, appeal from W.D. La.
  • per curiam (Jones, Stewart, Ramirez) (oral argument), prisoner suit
  • Affirming dismissal of claims arising from beating death of a Louisiana state prisoner by another inmate.

• U.S. v. Hanks, 25-40101, c/w 25-40159, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming 360- and 400-month sentences on convictions of production of child pornography and enticement of a minor to engage in illegal sexual activity.

• Crow v. HCL America Technologies, Inc., 25-40238, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), employment discrimination
  • Affirming denial of default judgment and dismissal of plaintiff’s employment discrimination claims.

• U.S. v. Eckiss, 25-40338, appeal from E.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lopez, 25-40476, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Estrada, 25-40500, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Quintanilla-Rosales, 25-40568, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Lumsden v. Johnson, 25-40623, appeal from E.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), prisoner suit
  • Dismissing as frivolous Texas state prisoner’s appeal from dismissal of § 1983 claim.

• Pete v. Small Business Administration, 25-40791, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), sovereign immunity
  • Affirming dismissal of suit against SBA challenging garnishment of disability benefits, on basis of sovereign immunity.

• U.S. v. Godinez-Gomez, 25-50475, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Orellana-Duron, 25-50491, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of illegal reentry.

• U.S. v. Smith, 25-50543, appeal from W.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), criminal, compassionate release
  • Dismissing as frivolous appeal from denial of motion for compassionate release.

• U.S. v. Castillo-Gonzalez, 25-50575, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentence
  • Affirming sentence on conviction of illegal reentry.

• McBride v. Guerrero, 25-50718, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), habeas corpus
  • Dismissing as frivolous appeal from denial of habeas petitioner’s motion seeking certain medical records.

• Shannon v. The Allstate Corp., 24-50836, appeal from W.D. Tex.
  • per curiam (Graves, Duncan; by quorum after Judge Dennis took inactive senior status) (oral argument), class action, insurance
  • Affirming dismissal of putative class claims challenging certain policy-holders’ premiums, under the filed-rate doctrine.

• U.S. v. King, 25-60324, appeal from S.D. Miss.
  • per curiam (Clement, Southwick, Oldham) (no oral argument); criminal, sentencing
  • Affirming consecutive 57-month sentences on convictions of possession of a firearm by a felon and conspiracy to provide a gun to another person, as a convicted felon.

• Fuentes-Alfaro v. Bondi, 25-60433, petition for review of BIA order
  • per curiam (Clement, Southwick, Oldham) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Jordan v. Doe, 25-60438, appeal from S.D. Miss.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Mississippi state prisoner’s § 1983 suit.