Take the Fifth

Designated for publication

• Arzu v. American Airlines, Inc., 25-10606, appeal from N.D. Tex.
  • Graves, J. (Elrod, Higginbotham, Graves) (no oral argument), international law
  • Affirming summary judgment dismissal of international law claims arising from death on international flight, to the extent the claims arise from theories of imperfect medical response, but reversing summary judgment to the extent claims arise from malfunctioning medical equipment.
  • Fourteen-year-old Kevin Greenidge died on an American Airlines international flight from Honduras to Florida after suffering cardiac arrest. The flight crew responded by moving him to the aft galley, performing CPR with the help of two medical professionals, and diverting to Cancun, which landed seventeen minutes after the emergency began. Four witnesses—including a physician and a nurse—testified that the aircraft’s Automatic External Defibrillator (AED) never delivered a shock, despite the device’s internal data recording one. Kevin’s aunt, Melissa Arzu, sued under the Montreal Convention.
  • At issue on appeal was (1) whether the crew’s allegedly ineffective medical response constitutes an “accident” under Article 17 of the Montreal Convention; (2) whether a malfunctioning AED constitutes an Article 17 accident; and (3) whether the Montreal Convention preempts a state-law breach of contract claim based on the airline’s Conditions of Carriage.
  • As to the ineffective response claim, the court held that a crew’s deviation from internal airline policy is irrelevant to the Article 17 inquiry; what matters is whether the event is “unexpected or unusual” measured against industry prevalence and FAA compliance. Even crediting Arzu’s version, the crew’s actions—removing Kevin, seeking medical help, assisting with CPR, fetching the AED, alerting the captain, and diverting—tracked the facts of White v. Emirates Airlines and did not amount to “willing inaction” under Blansett. The court noted: “An arguably ineffective medical response is not [an Article 17 accident], without unusual circumstances and willing inaction.”
  • As to the AED malfunction claim, FAA regulations required the flight to carry a functional AED. Four witnesses contradicted the AED’s internal data showing it delivered a shock, and the court declined to apply Scott v. Harris to disregard their testimony, reasoning: “American urges us to disregard four witnesses’ testimony that the AED malfunctioned. It does so relying on data from the allegedly malfunctioning AED.” Because FAA compliance informs the accident inquiry and a genuine dispute remained on whether the AED functioned, a reasonable jury could find an Article 17 accident.
  • As to whether the breach of contract claim was preempted, the court held that the Montreal Convention expressly preempts Arzu’s contract claim because the Conditions of Carriage’s advance-payment term is “materially identical to Article 28” of the Convention, and Article 29 provides that damages actions “can only be brought subject to the conditions and . . . limits of liability” of the Convention.

• Starbucks Corp. v. National Labor Relations Board, 24-60649, petition for review of NLRB order
  • Graves, J. (Stewart, Graves, Oldham) (oral argument), Oldham, J., concurring; labor law
  • Granting employer’s petition for review of NLRB order that found the employer terminated an employee for union-organizing activities, vacating order, and remanding for further proceedings.
  • During unionizing campaigns at two Starbucks locations in upstate New York, shift supervisor and union organizer James Schenk was terminated at the Latham store following a series of infractions—using extreme profanity directed at a coworker in a group chat, failing to complete closing tasks while on a final warning, and opening a letter addressed to Starbucks from the NLRB. At the Stuyvesant store, employees testified that a district manager substantially increased her presence during the union campaign. The ALJ found Schenk’s termination lawful, but the Board reversed, concluding Starbucks would not have disciplined or fired Schenk but for his union activities.
  • At issue on appeal was whether the Board’s finding that Schenk’s termination violated the NLRA was supported by substantial evidence, particularly whether the Board adequately considered contradictory evidence as required by Universal Camera Corp. v. NLRB.
  • The Court found that the Board failed to adequately address key contradictory evidence: (1) no other employee had used such extreme, sexist profanity targeted at coworkers; (2) an earlier discipline also involved profanity, which the Board should have considered as part of an “escalating issue”; (3) no other shift supervisors failed to complete closing tasks while on final warning; and (4) Schenk himself admitted he opened the NLRB letter because he did not believe Starbucks would share its contents. The court emphasized that the Board, as primary decisionmaker, “must ‘grapple with countervailing portions of the record'” and it “did not fully do so here.”
  • Judge Oldham concurred, agreeing with the result but opining he would not have remanded to the Board, writing that “the Board has starkly deviated from fairminded, law-based adjudication” and calling the case “yet another example of the Board’s troubling tendencies.” He catalogued Schenk’s language—calling a female coworker a “dumb f*ing bch” and his store manager a series of vulgar epithets—and wrote: “If a company in this country cannot choose to fire someone for this sort of unhinged abuse, then Heaven help us.” Judge Oldham noted that the ALJ “recognized the obviously correct fact that Schenk could be fired for his wild-eyed, profanity-laden rants” and criticized the Board for having “entirely ignored it.”

Unpublished decisions

• United States v. Seaton, 25-10285, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ramirez-Gonzalez, 25-30457, appeal from W.D. La.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sufficiency of evidence, Confrontation Clause
  • Affirming conviction of illegal reentry and possession of a firearm by an alien illegally in the United States.
  • Ramirez-Gonzalez challenged the sufficiency of the evidence on the firearm count and argued that portions of a 911 call were admitted in violation of the Confrontation Clause and Federal Rule of Evidence 403. The court found ample evidence that Ramirez-Gonzalez knew he was in the country illegally and that he constructively possessed the firearm found in a vehicle of which he was the sole occupant. The court also held the 911 call was not testimonial and was properly admitted under Rule 403 given its probative value.

• United States v. Anderson, 24-20423, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Goines, 25-40430, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Flores-Soto, 25-50287, c/w 25-50295, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 84-month sentence for illegal reentry and 18-month revocation sentence.
  • Flores-Soto, who had repeatedly reentered the country illegally over 30 years and had prior convictions including aggravated robbery with a deadly weapon, appealed his 84-month sentence for illegal reentry and an 18-month revocation sentence. Reviewing for plain error because Flores-Soto did not object below, the court rejected all six arguments:
    • (1) The criminal history category V was supported by the record from his 2019 conviction.
    • (2) The district court did not plainly err in relying on retributive factors for the revocation sentence, as its explanation referenced only permissible § 3553(a) factors.
    • (3) Use of the name “Fernando Sanchez Soto” was a deliberate choice, not a clerical error.
    • (4) Allegedly conflicting supervised-release conditions (reporting to probation within 72 hours versus immediate surrender for deportation) were permissible under prior precedent.
    • (5)–(6) The district court did not plainly err in finding that his aggravated robbery with a deadly weapon was an aggravated felony, because it qualifies as a “theft offense” under 8 U.S.C. § 1101(a)(43)(G).

• United States v. Arellano-Alvarado, 25-50971, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry, on basis that argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).

• United States v. Berryman, 25-50529, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Thompson, 25-20157, appeal from S.D. Tex.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Moccia v. Moccia, 25-20238, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), appellate jurisdiction
  • Dismissing appeal of district court’s grant of motions to dismiss his case against Cynthia Benn Moccia, Bank of America, N.A., and others. The court was unable to review any of Moccia’s contentions because he failed to provide a transcript of the hearing where the district court granted the motions and articulated its grounds for dismissal.

• Providence Title Co. v. Truly Title, Inc., 25-40194, appeal from E.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (oral argument), breach of fiduciary duty, breach of contract, employment
  • Affirming summary judgment for defendants on claims arising from collapse of merger negotiations and departure of various employees from one company in the failed merger to the other.
  • After merger negotiations between Providence Title and Truly Title collapsed, several Providence executives departed for Truly, taking employees and clients with them. Providence sued Truly and Graham Hanks, asserting claims for knowing participation in breach of fiduciary duty, breach of a nondisclosure agreement (NDA), breach of a non-solicitation agreement (NSA), tortious interference, and civil conspiracy. The district court granted summary judgment to the defendants on all claims, and Providence appealed.
  • On the breach of fiduciary duty claim, the court applied Crossroads Hospice and held that even if employees Tracie Fleming, Mark Fleming, and Kim Sheets-Sheffield breached their fiduciary duties, Providence failed to show that Truly or Hanks “contributed to, induced, or facilitated” any breach; mere knowledge of and benefit from the breaches was insufficient.
  • On the breach of the NDA claim, Providence offered no direct evidence that Truly misused confidential information; the inference of misuse from Truly’s competitive success alone was speculative and insufficient.
  • On the breach of the NSA claim, the district court correctly construed the informal, two-email NSA as effective from its execution date of May 9, 2019, expiring May 9, 2020, and Providence had abandoned the claims that survived under that reading.
  • On the derivative claims of tortious interference and civil conspiracy, the court held that these failed because the underlying torts could not survive summary judgment.

• United States v. Chox-Gonzalez, 25-11110, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• United States v. Washington, 25-30428, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Biegon v. Turkish Airlines Inc., 25-11311, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), civil
  • Affirming judgment for defendant, without any description of nature of case or issues on appeal.

• Shelter Mutual Insurance Co. v. Gibbs, 25-60476, appeal from S.D. Miss.
  • per curiam (Stewart, Haynes, Oldham) (no oral argument), insurance
  • Affirming summary judgment in favor of plaintiff insurer on declaratory judgment action.

• Martinez Pereira v. Blanche, 25-60539, petition for review of BIA order
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), immigration
  • Denying Venezuelan citizen’s petition for review of BIA’s dismissal of her appeal from an immigration judge’s denial of asylum, withholding of removal, and CAT protection.

• United States v. Tolentino-Cortes, 25-50486, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 48-month sentence on conviction of illegal reentry.

• Matute-Vallecillo v. Blanche, 25-60481, c/w 25-60596, petition for review of BIA order
  • per curiam (Stewart, Graves, Oldham) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA’s affirmance of the IJ’s denial of withholding of removal and CAT protection.

• United States v. Hale, 25-50599, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, search and seizure
  • Affirming conviction for conspiracy to transport illegal aliens, upholding district court’s denial of defendant’s motion to suppress evidence. The court found no clear error in the district court’s factual findings and concluded the totality of the evidence gave the Border Patrol agent a particularized and objective basis for suspecting alien smuggling.

• United States v. Celestine, 25-30506, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.