Take the Fifth

Designated for publication

• John Gannon, Inc. v. Texas Department of Transportation, 25-20244, appeal from S.D. Tex.
  • Higginson, J. (Haynes, Higginson, Ho) (oral argument withdrawn), § 1983, sovereign immunity, supplemental jurisdiction
  • Affirming as dismissal of § 1983 claims against Texas DOT as subject to sovereign immunity; and affirming declination to exercise supplemental jurisdiction over state-law claims, though modified to be a dismissal without prejudice.
  • John Gannon, Inc. owned billboards regulated by TxDOT. After TxDOT sought to cancel four billboard permits and assessed $235,000 in administrative penalties, Gannon pursued an administrative appeal and then state-court judicial review. Its state-court petition was dismissed because it was filed 47 days after the order became final—17 days past the 30-day jurisdictional deadline. Gannon separately filed this § 1983 action in federal court against TxDOT, TTC, and Executive Director Marc Williams, raising both constitutional and state-law challenges to the penalties.
  • At issue on appeal were (1) whether sovereign immunity barred Gannon’s claims against TxDOT, TTC, and Williams in his official capacity; (2) whether the Ex parte Young exception applied to the claims against Williams; and (3) whether the district court abused its discretion in declining supplemental jurisdiction over state-law claims.
  • The court held that TxDOT and TTC are arms of the state shielded by sovereign immunity. Although the Ex parte Young doctrine can provide a path around sovereign immunity for official-capacity suits seeking injunctive or declaratory relief, the plaintiff must show the named official has “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Gannon’s complaint named Williams but made “no effort—in its complaint or argument before this court—to explain how Executive Director Williams, ‘by virtue of his office,’ has ‘some connection with enforcement of the challenged act.'” Accordingly, the Ex parte Young exception was unavailable and the court lacked jurisdiction over any claim.
  • The court also found no abuse of discretion in declining supplemental jurisdiction over the state-law claims, noting the general rule that courts “should decline to exercise state law claims when all federal-law claims are eliminated before trial.” Because dismissals on sovereign immunity grounds are without prejudice—unlike res judicata dismissals, which are generally with prejudice—the court modified the judgment to dismiss entirely without prejudice.

• Wightman v. Ameritas Life Insurance Corp., 24-30775, appeal from E.D. La.
  • Graves, J. (Elrod, Higginbotham, Graves) (oral argument), insurance
  • Reversing in part summary judgment for insurer on dentists’ claims for payment for services under Louisiana’s PPO Act, and remanding.
  • Drs. Mark and Courtney Wightman, small-clinic dentists, contracted with DenteMax (a PPO) to offer discounted services in exchange for patient referrals. Unbeknownst to them, DenteMax separately agreed to let Ameritas access its network and pay providers at the same discounted rates. When the Wightmans discovered Ameritas was reimbursing at the discounted rate rather than their standard fees, they sued, alleging violations of Louisiana’s PPO Act, unjust enrichment, and other claims. After protracted proceedings including a certified question to the Louisiana Supreme Court, the district court on remand granted summary judgment to Ameritas, finding dental services are not “healthcare” under the PPO Act and that the Wightmans had abandoned their non-PPO Act claims in a prior appeal.
  • At issue on appeal were (1) whether dental services qualify as “healthcare” under Louisiana’s PPO Act; (2) whether the district court properly applied judicial estoppel; and (3) whether the district court could deem the Wightmans’ non-PPO Act claims abandoned based on the prior appeal.
  • The court found the PPO Act’s definition of “provider”—entities offering “health care services” “includ[ing] but not . . . limited to hospitals, individuals, or groups of physicians . . . and other health care entities”—is broad and open-ended. A dentist “is skilled in and licensed to practice the prevention, diagnosis, and treatment of diseases, injuries, and malformations of the teeth, jaws, and mouth,” fitting “squarely within the ordinary meaning of healthcare services.” A 1994 Louisiana Attorney General opinion explicitly concluded “that dentists are covered by the definition of ‘provider'” under the statute.
  • The court rejected the argument that the later-enacted Network Leasing Act demonstrated the legislature intended to exclude dentists from the PPO Act, finding the two statutes cover different conduct: the NLA governs contract formation while the PPO Act governs what must appear on benefit cards at the point of care. The court also found the district court abused its discretion by applying judicial estoppel “without providing sufficient analysis”—it “failed to articulate the governing standard” and “made no finding on either the second or third elements.”
  • On the non-PPO Act claims, the court held the district court violated the mandate rule by concluding those claims were abandoned on prior appeal. The court emphasized that “this court, not the district court, has the authority to determine whether to consider issues that may have been forfeited on appeal.” Because the prior panel “simply reversed the district court’s order and refused to decide any other issues, the district court erred by concluding that the Wightmans had abandoned these claims.”

• Guilbeau v. Schlumberger Technology Corp., 25-50594, appeal from W.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Oldham) (oral argument), Fair Labor Standards Act
  • Reversing denial of motion for partial summary judgment for employer on overtime determination, rendering partial summary judgment, and remanding for further proceedings.
  • This FLSA collective action involves Schlumberger directional drillers and measuring-while-drilling employees paid under a “hybrid” compensation scheme combining a fixed biweekly salary (e.g., $1,826 for plaintiff Guilbeau) with variable day-rate pay ($525 per rig day, $262.50 per standby day). Variable pay often comprised a majority of total compensation—Guilbeau’s ratio of total pay to guaranteed pay was 5.9-to-1. The district court denied Schlumberger’s motion for partial summary judgment, finding Guilbeau eligible for overtime, and certified the issue for interlocutory appeal.
  • At issue on appeal was whether Schlumberger’s hybrid pay scheme qualifies as “salary-basis” compensation exempt from FLSA overtime requirements under 29 C.F.R. § 541.602(a), or whether the daily-rate component makes § 541.604(b) and its “reasonable relationship” test the governing standard.
  • The court held that Section 602(a) requires only that the employee “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of [his] compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” Guilbeau’s biweekly salary of $1,826 was guaranteed, exceeded the regulatory minimum, and was not dependent on hours or days worked—satisfying all requirements. Section 604(a) confirms that “[a]n employer may provide an exempt employee with additional compensation without losing the exemption,” meaning the day-rate payments on top of salary do not defeat the exemption.
  • The court relied on its prior decision in Venable v. Smith International (involving a “nigh identical ‘bifurcated’ pay structure for oil rig workers”) and the Tenth Circuit’s decision in Wilson v. Schlumberger addressing the same pay system. Both concluded that when the guaranteed salary meets Section 602(a)’s requirements, “the additional compensation at the daily rate does not defeat” the overtime exemption. The court distinguished Gentry v. Hamilton-Ryker, where the “salary” was merely the hourly rate times eight hours—an “illusory” weekly guarantee calculated on an hourly basis that fell under Section 604(b) instead.
  • The court declined to grant summary judgment for the entire 31-member DD collective, noting the record does not establish whether each individual meets the other exemption criteria (job duties, total compensation, salary thresholds). It remanded the “continued viability of the collective” as “a fact-bound question” for the district court.

Unpublished decisions

• United States v. Castaneda, 25-11132, appeal from N.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal, sentencing, guilty plea
  • Affirming sentence on methamphetamine conviction.
  • At issue on appeal were (1) whether the district court erred in applying the U.S.S.G. § 2D1.1(b)(5) importation enhancement when the defendant claimed he did not know the methamphetamine was imported from Mexico; and (2) whether the appellate waiver in the plea agreement was unenforceable because the district judge suggested the objection was preserved.
  • The merits challenge was foreclosed by circuit precedent (United States v. Foulks). Because the merits issue was foreclosed, the court pretermitted the waiver challenge.

• United States v. Self, 25-60533, appeal from N.D. Miss.
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of escape.
  • At issue on appeal were (1) procedural reasonableness — whether the district court erred in calculating criminal-history category by separately allotting points for a federal firearm-possession offense and a state attempted-murder offense arising from the same incident; and (2) substantive reasonableness of an above-Guidelines 60-month sentence for escaping custody.
  • Under plain-error review, Self failed to show clear-or-obvious error in the criminal-history calculation because the two sentences did not fall within the exceptions in U.S.S.G. § 4A1.2(a)(2). The court lacked jurisdiction over the downward-departure claim. On substantive reasonableness, the district court permissibly relied on prior assaults on law-enforcement officers to justify the upward variance.

• United States v. Campos-Espinosa, 25-40591, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming sentence.
  • At issue on appeal was whether the district court erred on remand in (1) denying safety-valve relief under the Guidelines because the defendant failed to provide a full and truthful disclosure, and (2) denying a mitigating-role adjustment.
  • The district court’s findings were plausible in light of the record. The defendant’s testimony was contradicted by other evidence and the jury’s guilty verdict. The record showed the defendant was not merely a courier but helped form the distribution cell and acquire transport equipment.

• United States v. Paguaga-Aguilar, 25-50451, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming 36-month sentence on conviction of illegal reentry.

• Albert v. United States Department of the Army, 25-51030, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), personal tort
  • Affirming dismissal of pro se complaint against the U.S. Army and related defendants with prejudice, adopting the magistrate judge’s report and recommendation, and subsequently denying motions to vacate/reconsider. The plaintiff alleged premature dismissal, failure to liberally construe his complaint, and an improper filing bar.
  • The report and recommendation adequately engaged with the merits. Albert cited no compelling authority to advance his novel theory of injury under the Feres doctrine.

• United States v. Marte-Roble, 25-50591, appeal from W.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• United States v. Everill, 25-60367, appeal from N.D. Miss.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Affirming application of a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for knowing distribution of child pornography in a case involving receipt of child sexual-abuse material.
  • Even assuming without deciding that the enhancement was applied in error, the government carried its burden of demonstrating the error was harmless.

• United States v. Moldovan, 25-11140, appeal from N.D. Tex.
  • per curiam (Elrod, Stewart, Higginson) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release, rejecting as foreclosed by circuit precedent the argument that 18 U.S.C. § 3583(g) is unconstitutional under United States v. Haymond because it mandates revocation of supervised release and imprisonment without a jury trial or proof beyond a reasonable doubt.

• United States v. Walker, 25-40754, appeal from E.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentencing
  • Dismissing appeal of resentencing.
  • At issue on appeal was whether the district court had jurisdiction to resentence the defendant (from a concurrent to a consecutive term) more than fourteen days after the original sentencing.
  • The district court lacked jurisdiction to correct the sentence outside the 14-day window of Fed. R. Crim. P. 35(a). The resentencing and amended judgment were void, leaving no valid judgment from which to appeal. The original sentence and judgment remain in effect.

• Tucker v. Schenck, 25-51018, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s complaint.
  • At issue on appeal was whether the district court erred in dismissing a Texas prisoner’s complaint — filed against all nine judges of the Texas Court of Criminal Appeals — as frivolous, for lack of jurisdiction, and on the basis of judicial immunity. Also, whether the district court abused its discretion in denying appointment of counsel.
  • The court was unpersuaded the district court erred on judicial immunity and found no error in the dismissal under 28 U.S.C. § 1915(e). Denial of appointed counsel was not an abuse of discretion.

• Green v. Experian Information Solutions, Inc., 25-40664, appeal from E.D. Tex.
  • per curiam (Jones, Richman, Southwick) (no oral argument), Fair Credit Reporting Act, Fair Debt Collection Practices Act
  • Affirming dismissal of FCRA and FDCPA claims.
  • At issue on appeal were whether the court had jurisdiction over the denial of a Fed. R. Civ. P. 60(b) motion when the appellant did not file a separate notice of appeal from that order; and whether the appellant preserved any challenge to the underlying dismissal with prejudice.
  • The court lacked jurisdiction over the Rule 60(b) ruling because Green did not appeal that order. Green abandoned any challenge to the original dismissal by failing to brief any argument directed at it.

• United States v. Corea-Ramos, 25-11260, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• United States v. Humphries, 25-11331, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Villegas-Lugo v. Humphrey, 25-11247, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), habeas corpus
  • Affirming dismissal of § 2241 petition.
  • At issue on appeal was whether a federal prisoner’s 28 U.S.C. § 2241 habeas petition alleging delayed medical treatment was properly dismissed for lack of jurisdiction.
  • Because a favorable determination would not automatically entitle the petitioner to accelerated release, the claims are not cognizable under § 2241. The proper vehicle for conditions-of-confinement claims is a Bivens action.

• United States v. Leon-Utrera, 25-50772, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Herrera-Gonzalez, 25-50600, c/w 25-50601, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on illegal reentry, and revocation of supervised release.

• Byrum v. Bush, 26-50024, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), prisoner suit
  • Affirming dismissal of former Texas prisoner’s § 1983 claims.
  • At issue on appeal were whether a civilly committed former Texas prisoner’s 42 U.S.C. § 1983 complaint (naming over 500 defendants, including former governors and state legislators) stated a claim under the Eighth and Fourteenth Amendments; whether state legislators were immune; whether mandamus and release were proper remedies in a § 1983 action; and whether appointment of counsel was warranted.
  • The complaint failed to state a plausible Eighth Amendment deliberate-indifference claim or a Fourteenth Amendment due-process claim. State legislators were entitled to legislative immunity. Habeas — not § 1983 — is the proper vehicle for release, and the court lacked power to grant mandamus relief. Denial of counsel was not error.

• Flores-Mijango v. Blanche, 25-60548, petition for review of BIA order
  • per curiam (Stewart, Graves, Oldham) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order upholding denial of deportation relief.
  • At issue on appeal was whether the BIA erred in (1) finding the petitioner’s proposed particular social groups (individuals with criminal history; deportees) overbroad, (2) rejecting his anti-gang political-opinion claim, (3) denying CAT protection, and (4) its treatment of his evidence.
  • The record did not compel a conclusion contrary to the BIA’s. The petitioner failed to show he would be tortured with official acquiescence if returned to El Salvador and established neither that he would be imprisoned nor that imprisonment there constitutes torture under CAT. His evidentiary argument amounted to a challenge to the agency’s factfinding function.

• United States v. Martinez-Rodriguez, 25-10980, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.