October 26, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • Bien v. Union Pacific Railroad Company, 26-40061, appeal from E.D. Tex.
    • Smith, J. (Smith, Haynes, Enhelhardt) (oral argument), timeliness, Americans with Disabilities Act
    • Reversing dismissal of ADA claim as time-barred, holding that claim was tolled under American Pipe.
    • James Bien worked for Union Pacific as a locomotive train conductor. After failing two color vision tests in 2013, he was removed from his conductor position and given a work restriction that could not be accommodated. In 2014, Union Pacific hired him at a lower-paying position as a Manager of Crew Utilization. In September 2015, Bien took an Ishihara color vision test—administered to him by mistake—and passed. He requested a follow-up field test to remove his restriction and be reinstated as a conductor. In October 2015, a Union Pacific committee denied his request, finding that the 2015 passing test did not override the 2013 failed field test results. Bien filed an EEOC charge in April 2020 and sued in January 2025. Union Pacific moved to dismiss, arguing the suit was time-barred under the ADA.
    • At issue on appeal was whether Bien was entitled to American Pipe tolling of the statute of limitations based on his membership in a class action previously filed in Harris v. Union Pacific Railroad Co., specifically whether the certified (narrowed) class definition in Harris unambiguously excluded him, thereby restarting the limitations clock. The original Harris class covered individuals adversely affected “for reasons related to a Fitness-for-Duty evaluation,” while the certified class was narrowed to those “subject to a fitness-for-duty examination as a result of a reportable health event.”
    • The court applied the “unambiguous exclusion” standard from Zaragoza v. Union Pacific R.R., 112 F.4th 313 (5th Cir. 2024), holding that American Pipe tolling continues unless a plaintiff is unambiguously excluded from a class definition. The court emphasized that “[n]othing but the most straightforward, black-and-white, no-lawyer-required cases of exclusion will end American Pipe tolling for a plaintiff who meets an initial class definition.” Any other rule “would encourage plaintiffs to file individual suits the moment a class definition is arguably narrowed,” defeating the purpose of class actions.
    • Applying this standard, the court found Bien’s reading of the certified class definition was at least plausible. Bien’s 2015 test—which Union Pacific administered even if by mistake—unambiguously bore on his fitness for duty, and Union Pacific’s committee formally reviewed his record and weighed the new evidence against his prior restriction, all of which plausibly constituted “subjection to a fitness-for-duty examination.” The court noted that Union Pacific’s Medical Rules used “evaluations” and “examinations” interchangeably, undermining Union Pacific’s argument that “examination” referred only to a discrete field test.
    • The court rejected Union Pacific’s textual arguments as “the kinds of subtle distinctions in language that are fodder for lawyers and quicksand for laymen,” quoting DeGeer v. Union Pac. R.R., 113 F.4th 1035, 1040 (8th Cir. 2024). The court acknowledged that “Union Pacific has provided elegant and persuasive arguments for why its reading is the best rendering of the text. But it has not provided a reading so unambiguously clear that a bystander plaintiff such as Bien would have recognized his exclusion with no plausible contrary argument.” The court declined to reach the exhaustion-of-administrative-remedies issue, remanding it for the district court to address.

Unpublished decisions

  • United States v. Burke, 24-20369, appeal from S.D. Tex.
    • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, restitution, double jeopardy
    • Affirming conviction and restitution for receipt and possession of child pornography.
    • At issue on appeal was (1) whether the district court erred in imposing restitution under 18 U.S.C. § 2259 without a sufficient proximate-cause analysis; and (2) whether simultaneous convictions for both receipt and possession of child pornography constitute a multiplicity violation under the Double Jeopardy Clause of the Fifth Amendment. Both issues were reviewed for plain error because Burke failed to preserve them below.
    • The court found that Burke did not demonstrate that any restitution error affected his substantial rights, given the materials in the presentence report and the amounts awarded to victims. His multiplicity challenge also failed because he did not show the claimed error was clear or obvious.
  • United States v. Hite, 25-40460, appeal from E.D. Tex.
    • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, guilty plea
    • Affirming guilty plea conviction of drug charge.
    • At issue on appeal was whether the district court abused its discretion in denying Carl Wayne Hite, Jr.’s motion to withdraw his guilty plea for conspiracy to possess with intent to distribute fentanyl. The court evaluated the Carr factors, including whether the defendant asserted innocence, the delay in filing the motion, assistance of counsel, and the voluntariness of the plea.
    • The court found the district court’s application of the Carr factors was sound: Hite conceded he did not assert innocence, waited two months to move to withdraw, had close assistance of counsel, and entered a knowing and voluntary plea. The court also held there was no abuse of discretion in denying relief without an evidentiary hearing.
  • United States v. Rodriguez, 26-10004, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Olatunji v. AT&T Services, Inc., 26-10336, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Oldham) (no oral argument), employment discrimination, Title VII
    • Affirming summary judgment dismissal of employment discrimination claim.
    • At issue on appeal was whether the district court properly granted summary judgment to AT&T on the plaintiff’s Title VII discrimination and retaliation claims. The underlying facts, as summarized by the employer, were that Olatunji abandoned a customer, admitted it, and was fired; he then claimed discrimination and retaliation.
    • The court adopted the reasoning of the magistrate judge’s “thorough and convincing 30-page report and recommendation” in support of summary judgment.
  • United States v. Bell, 26-10538, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas) (no oral argument), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
    • At issue on appeal was whether Robert Bell, a federal prisoner serving 240 months for armed carjacking, demonstrated entitlement to compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and whether the appeal was taken in good faith so as to permit him to proceed in forma pauperis (IFP). Bell initially argued that the deletion of U.S.S.G. § 5K2.3 by Amendment 836 constituted an extraordinary and compelling circumstance, but he abandoned that argument on appeal. He alternatively argued his age (60), 33 years of continuous incarceration, and clean disciplinary record warranted release.
    • The court held that Bell’s cited circumstances—age, length of incarceration, and clean record—were neither extraordinary nor compelling under governing precedent. Because he failed to show an arguable abuse of discretion on that threshold issue, the court declined to reach his arguments regarding the § 3553(a) sentencing factors.
  • United States v. Andino-Ortega, 26-50316, c/w 26-50317, appeal from W.D. Tex.
    • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
    • At issue on appeal was whether the recidivism enhancement in 8 U.S.C. § 1326(b) for illegal reentry is unconstitutional. Andino-Ortega also appealed the revocation of supervised release from a prior case but raised no challenge to the revocation judgment.
    • The court held that Andino-Ortega’s constitutional challenge to § 1326(b) was squarely foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which the Supreme Court has left intact as a “narrow exception permitting judges to find only the fact of a prior conviction.” The government’s alternative motion for an extension of time was denied as moot.
  • Jasso Martinez v. Blanche, 26-60099, petition for review of BIA order
    • per curiam (Smith, Southwick, Oldham) (no oral argument), immigration
    • Denying petition for review of BIA order denying withholding of removal.
    • At issue on petition was (1) whether the BIA failed to consider the petitioner’s evidence in the aggregate in evaluating “exceptional and extremely unusual hardship” to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D); (2) whether the BIA insufficiently discussed the evidence and arguments before it; and (3) whether the BIA was required to address whether Jasso Martinez’s conviction for use of a fraudulent document independently disqualified him from cancellation of removal.
    • The court found that the record demonstrated the BIA properly considered the evidence in the aggregate and that Jasso Martinez failed to meet the hardship standard under deferential review as articulated in Wilkinson v. Garland, 601 U.S. 209 (2024). The BIA’s discussion of the evidence was adequate. Because the petitioner could not satisfy the hardship requirement, the BIA was not required to reach the separate question of whether his fraud conviction was independently disqualifying.