Take the Fifth

Designated for publication

• MIECO, L.L.C. v. Pioneer Natural Resources USA, Inc., 25-11204, appeal from N.D. Tex.
  • Douglas, J. (Clement, Oldham, Douglas) (oral argument withdrawn), breach of contract, expert witness, mandate
  • Affirming defense judgment after bench trial on remand from reversal of earlier summary judgment for defendant.
  • Energy trading firm MIECO contracted with natural gas producer Pioneer for the daily sale of 20,000 million British thermal units of natural gas on a “Firm” basis from November 2020 through March 2021. In February 2021, Winter Storm Uri brought unprecedented low temperatures and ice storms to Texas, causing rapid well and pipeline freeze-offs. Pioneer failed to deliver the full contracted amount from February 14 through 19, and MIECO was forced to purchase replacement gas on the spot market, suing for over $9 million in cover damages. The contract contained a force majeure clause excusing nonperformance caused by events including “weather related events affecting an entire geographic region,” provided the claiming party exercised “due diligence.” After the Fifth Circuit reversed an earlier summary judgment for Pioneer in Pioneer I, 109 F.4th 710 (5th Cir. 2024), the district court held a bench trial on remand and again entered judgment for Pioneer, finding that Winter Storm Uri was a force majeure event and that Pioneer had exercised due diligence.
  • At issue on appeal was (1) whether the district court complied with the Fifth Circuit’s mandate on remand by properly evaluating whether the storm “prevented” Pioneer’s performance and whether Pioneer exercised due diligence; and (2) whether the district court abused its discretion by admitting Pioneer’s expert testimony (Kris Terry) and excluding portions of MIECO’s expert testimony (Richard Smead) concerning industry custom and practice.
  • On the mandate rule, the court found that the district court did exactly what Pioneer I required: it determined at trial that Winter Storm Uri “prevented Pioneer from delivering 20,000 [million British thermal units] under the Contract … because it rendered Pioneer’s full performance impracticable.” MIECO’s own expert characterized the storm’s effects on the Texas natural gas market as “truly cataclysmic.” The district court also made specific findings that Pioneer took reasonable steps both to prepare for the storm—including increasing interruptible supply agreements, winterizing wells, conducting site visits, and purchasing additional gas—and to mitigate its effects during and after the storm. Because the district court “effected our mandate and did nothing more,” the panel affirmed.
  • On Pioneer’s expert Kris Terry, the court noted that the “importance of the trial court’s gatekeeper role is significantly diminished in bench trials … because, there being no jury, there is no risk of tainting the trial by exposing a jury to unreliable evidence.” Terry was qualified based on extensive professional experience in the natural gas industry, and the district court carefully limited her testimony to factual questions about force majeure invocation and response to severe weather, rather than legal conclusions about contractual interpretation.
  • On MIECO’s expert Richard Smead, the court held the district court properly excluded his testimony about what constitutes “due diligence” or “reasonable efforts” under the contract, because “[t]he interpretation of a contract is a question of law for the court” and “experts cannot render conclusions of law or provide opinions on legal issues.” Smead’s proposed testimony “would have focused on the interpretation of contractual terms,” which “amounts to an opinion concerning legal conclusions.”

• Navejas v. City of El Paso, 25-51061, appeal from W.D. Tex.
  • Duncan, J. (Jones, Southwick, Duncan) (no oral argument), qualified immunity, municipal liability
  • Affirming summary judgment qualified immunity dismissal of claim against officer and summary judgment dismissal of Monell claim.
  • El Paso Police Officer Steven Jaso responded to a domestic-violence call at approximately 2:14 a.m. reporting that seventy-year-old Armando Navejas—who suffered from dementia and Alzheimer’s disease—had tried to strangle his wife. Upon arrival, Jaso encountered Armando outside; Armando repeatedly ignored commands, picked up and threw multiple objects at Jaso (striking him with one), and remained unsecured. Jaso deployed his taser once, causing Armando to fall. Armando was hospitalized and later died. His daughter, Debbie Navejas, sued Jaso under 42 U.S.C. § 1983 for excessive force and the City under Monell for municipal liability based on inadequate training, supervision, discipline, the CIT scheduling gap, and ratification. The district court granted summary judgment for both defendants.
  • At issue on appeal was (1) whether Officer Jaso was entitled to qualified immunity for his single taser deployment against an actively resisting seventy-year-old suspect with dementia; and (2) whether the City of El Paso was liable under Monell on any of five theories of municipal liability—failure to train/supervise, failure to discipline, failure to deploy CIT, and ratification.
  • On qualified immunity, the court resolved the case on the “clearly established” prong without deciding whether the tasing actually violated the Fourth Amendment. The court distinguished Navejas’s principal authorities—Newman v. Guedry, Ramirez v. Martinez, and Hanks v. Rogers—as involving “officers’ gratuitous use of force against non-resisting or already-restrained suspects,” which was “quite a ways from this one.” By contrast, here it was undisputed that Armando was the subject of a domestic violence call, ignored repeated commands, threw objects at Jaso (striking him with one), and remained uncontrolled. The court emphasized that Jaso tased Armando “only once,” which “shows a reasonable relationship between the need for force and the amount of force used,” quoting Betts v. Brennan. There was “nothing ‘passive’ about Armando’s erratic behavior.”
  • On municipal liability, the court systematically rejected all five theories. The failure-to-train claim failed because Navejas’s pattern evidence (the Herrera and Pino incidents) all postdated the encounter with Armando, and new pattern evidence from Sanchez v. Gomez and Ramirez v. Escajeda was raised for the first time on appeal and thus waived. The single-incident exception did not apply because EPPD did provide training—Jaso completed seven use-of-force classes, twenty-five hours of less-lethal-force training, forty-four hours of mental-health training at the academy, and three seven-hour refresher courses—so this was “not a case in which the City provided no training concerning the relevant constitutional duty.” The failure-to-discipline claim failed because Navejas “did not identify even ‘a single prior incident’ in which EPPD failed to discipline an officer for excessive force.” The CIT scheduling claim failed because EPPD made a resource-allocation decision based on data showing overnight hours generated the fewest CIT calls, and no prior constitutional violation resulted from the overnight gap. The ratification theory failed because Jaso’s conduct was not an “obvious violation of clearly established law.”
  • The court also denied Navejas’s request for remand for additional discovery, noting she never invoked Rule 56(d) or told the district court she could not adequately respond to summary judgment without further discovery, and she failed to explain “with the necessary specificity what discovery she diligently pursued” or how additional time would have changed the outcome.

Unpublished decisions

• Moss v. Martin, 24-10848, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Duncan) (no oral argument), civil, Rule 60
  • Affirming denial of Rule 60 motion to set aside judgment for fraud on the court.
  • At issue on appeal was whether the district court abused its discretion in denying a motion to set aside an $18.6 million judgment under Federal Rule of Civil Procedure 60(d)(3) for fraud on the court. Defendant Brian Martin alleged, six years after the judgment, that he never authorized his co-defendant’s attorney to represent him and that the unauthorized representation constituted fraud on the court.
  • The court held that Martin failed to establish fraud on the court by clear and convincing evidence. Martin offered no evidence beyond speculation and an unsworn witness statement to show his attorney lacked authority or that any conduct was part of an “unconscionable plan or scheme” designed to improperly influence the court. The court further noted that Martin could not sit on his rights for years and then bring a collateral attack on grounds that were available to him long before.

• Fischer v. Phillips, 25-11267, appeal from N.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (oral argument), qualified immunity, supplemental jurisdiction
  • Affirming qualified immunity dismissal of § 1983 claims and declination of supplemental jurisdiction over state law claims.
  • At issue on appeal was (1) whether an Arlington, Texas police officer was entitled to qualified immunity on an excessive-force claim under 42 U.S.C. § 1983 after fatally shooting a motorist who was driving toward officers in a cul-de-sac following a low-speed pursuit; and (2) whether the district court erred in declining to exercise supplemental jurisdiction over state-law wrongful death and survival claims.
  • Applying the Graham v. Connor factors, the court found that two of three factors favored the officer: driving while intoxicated is a “serious crime” under Fifth Circuit precedent, and the suspect was actively evading arrest by repeatedly disregarding commands and fleeing. On the critical second factor—whether the suspect posed an immediate threat—body-camera and dashboard-camera footage conclusively showed the suspect’s vehicle was moving directly toward the officers at the moment shots were fired, distinguishing this case from Lytle v. Bexar County. The court relied on Fraire v. City of Arlington and Hathaway v. Bazany, both involving deadly force against vehicles approaching officers in similar circumstances. Because all federal claims were properly dismissed, the district court did not abuse its discretion in declining supplemental jurisdiction over the remaining state-law claims.

• United States v. Alvarez, 25-40343, appeal from S.D. Tex.
  • per curiam (Clement, Oldham, Douglas) (no oral argument), Oldham, J., concurring in judgment; criminal, sentencing
  • Affirming in part, and vacating in part, sentence involving conflict between orally pronounced supervised release conditions and written judgment, and remanding.
  • At issue on appeal was whether there was a conflict between the oral pronouncement and written judgment of the defendant’s sentence regarding supervised-release conditions restricting possession and use of electronic devices, following a guilty plea to enticement and coercion of a minor under 18 U.S.C. § 2422(b).
  • The court found a conflict between the written judgment—which required prior probation-officer approval before possessing or using computers—and the oral pronouncement, which adopted the presentence report’s less burdensome condition requiring only monitoring of electronic devices. Under Diggles and its progeny, when the written judgment imposes a more burdensome condition than the oral pronouncement, the oral pronouncement controls. The case was remanded for the district court to amend the written judgment to conform to the oral sentence. Because remand resolved the issue, the court did not reach whether the written condition constituted an improper delegation of authority or was substantively unreasonable.
  • Judge Oldham concurred in judgment, reiterating his view that the Diggles line of precedent “is broken beyond repair.” He criticized the en banc court for declining to revisit the issue, writing: “Both premises are faulty. I’ve already explained in Vacchino, Perez, Griffin, and other cases that Diggles was wrong. And we ignore this mistake at our peril.” He emphasized the rule’s practical consequences: “The Diggles rule is so counterintuitive and foreign to all conceptions of law that defense counsel missed it in the district court and again in our court. Defense counsel even filed an Anders brief and asked to be excused from this case—before our court identified the Diggles problem that now warrants relief.” He concluded: “[T]he Diggles problem we created in 2020 and then litigated sua sponte under Anders in this case is a structural error that demands sentencing relief for a pedophile.”

• Islam v. Blanche, 25-60702, petition for review of BIA order
  • per curiam (Elrod, Richman, Ramirez) (no oral argument), immigration
  • Denying Bangladeshi citizen’s petition for review of BIA order.
  • At issue on petition was (1) whether the BIA abused its discretion in finding that petitioner, a Bangladeshi national, failed to establish good cause for missing a filing deadline for his asylum application; (2) whether the petitioner was denied due process; and (3) whether the court had jurisdiction to consider claims regarding the prisoner mailbox rule and equitable tolling that were not raised before the BIA.
  • The court held that the BIA did not abuse its discretion in finding Islam failed to present sufficient evidence—such as affidavits or proof of mailing—to show good cause for missing the filing deadline, noting that his unsworn statements in a brief carried no evidentiary weight and the mailing receipt did not specify its contents. On due process, the court found that even if a violation had occurred, Islam failed to make the required prima facie showing of substantial prejudice, offering only conclusory statements about his claims. Finally, the court held it lacked jurisdiction to consider the prisoner mailbox rule and equitable tolling arguments because they were never raised before the BIA.

• Stanford v. England Logistics, L.L.C., 26-10019, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), civil
  • Rule 47.6 affirmance in favor of defendant, with no description of claim or issues on appeal.

• Sanders v. Richardson, 26-10182, appeal from N.D. Tex.
  • per curiam (Elrod, Richman, Ramirez) (no oral argument), Title VII, employment discrimination
  • Affirming summary judgment dismissal of Title VII retaliation claim.
  • At issue on appeal was whether the district court properly granted summary judgment to the employer on retaliation claims under Title VII, 42 U.S.C. § 1981, and the Texas Commission on Human Rights Act, where the plaintiff—a Black woman employed by FedEx—alleged she was denied a promotion in retaliation for filing workplace complaints.
  • The court held there was no genuine dispute of material fact as to whether Sanders engaged in a “protected activity.” Her two pre-promotion complaints described a co-worker’s “hostile, toxic, rude, aggressive, passive aggressive, smug, snide, bullying behavior” but did not allege conduct that could reasonably be described as discriminatory—i.e., based on race or sex. Her remaining four complaints occurred after her promotion and therefore could not be causally linked to the alleged retaliatory denial of promotion. As to direct evidence of retaliation, the court acknowledged that a FedEx district manager told Sanders, “in order for me to approve you for any promotions, the HR stuff, that has to stop,” but concluded this statement was not discriminatory because the “HR stuff” referred to complaints about non-discriminatory conduct.