Take the Fifth: Dec. 21-24 opinions

January 4, 2021  |   | Take the Fifth

Designated for publication

  • Taylor v. Stevens, 17-10253, appeal from N.D. Tex.
    • per curiam (Owen, Jones, Smith), qualified immunity, § 1983, Eighth Amendment
    • On remand from the Supreme Court, vacating its earlier decision reversing in part and remanding dismissal of Eighth Amendment conditions-of-confinement claims on qualified immunity grounds, and remanding case in its entirety.
  • Texas v. U.S. Environmental Protection Agency, 18-60606, on petition for review of final action of U.S. EPA
    • Elrod, J. (Clement, Elrod, Duncan), Clean Air Act
    • Denying petition by State of Texas challenging designation of Bexar County as being in non-attainment for 2015 ozone National Ambient Air Quality Standards (“NAAQS”) on basis that modeling showed Bexar would be in attainment by 2020; and denying petition by Sierra Club of nonattainment designation on basis that neighboring counties (Atascosa, Comal, and Guadalupe) should also have been included in the designation.
    • The Court first held that it was an appropriate venue for the challenge to the nonattainment designation, as it was not one of the categories of agency decisions placing exclusive venue in the D.C. Circuit, as it involved only a locally or regionally applicable action.
    • The Court then rejected Texas’s challenge that the 2015 change in the ozone NAAQS was not “necessary,” agreeing with the EPA that the administrator has discretion to determine necessity under the statute. The Court then held that EPA did not abuse its discretion in determining that Bexar was not in attainment, and in rejecting the state’s modeling that predicted attainment by 2020. The Court held that the Dictionary Act did not require applying a future tense to the Clean Air Act’s concept of “attainment,” and that it was not arbitrary and capricious for the EPA to disregard modeling that showed potential attainment in the future.
    • The Court then rejected Sierra Club’s argument that neighboring counties contributing more than one percent to the pollution of a nonattainment county should also be included in a nonattainment designation. The Court held that EPA’s past practices had not established a one-percent trigger that trumped the agency’s discretion. “This is likely because attainment designations are data-intensive, technical, and complex.”
  • U.S. v. Garcia, 19-10465, appeal from N.D. Tex.
    • Wilson, J. (Jolly, Southwick, Wilson), criminal, supervised release
    • Affirming orally announced supervised release conditions that defendant participate in a drug treatment program and contribute $25 per month to its cost.
    • While the record is not clear whether the district court orally referred to a document listing these special conditions of supervised release, the Court held that remand could not be supported where the defendant did not even affirmatively assert that the written judgment referred to by the district court did not contain the supervised release conditions at issue.
    • The Court then held that the district court’s imposition of a condition to contribute $25 per month to drug treatment did not conflict with its finding that defendant was indigent, as the payment condition would be based on future economic state.
  • Hewitt v. Helix Energy Solutions Group, Inc., 19-20023, appeal from S.D. Tex.
    • Ho, J. (Wiener, Higginson, Ho), Fair Labor Standards Act
    • On petition for panel rehearing, withdrawing previous panel opinion and entering new opinion (with petition for en banc rehearing remaining pending).
    • Reversing district court’s judgment that highly compensated executive employee who was paid based on a daily rate was a professional salaried employee exempt from the FLSA’s overtime provisions, and remanding for further proceedings.
    • “[A] daily rate worker can be exempt from overtime—but only ‘if’ two conditions are met: the minimum weekly guarantee condition and the reasonable relationship condition. The employer here does not even purport to meet both of these conditions. Instead, the employer candidly asks us to ignore those conditions. But ‘if’ means ‘if’—not ‘irrespective of.’ And respect for text forbids us from ignoring text. Respect for text thus requires us to hold that Helix is subject to the requirements of § 541.604(b).” “This two-prong test protects employees in two ways. First, the ‘minimum weekly’ guarantee ensures that a daily rate employee still receives a guaranteed amount each week ‘regardless of the number of hours, days or shifts worked.’ In other words, it sets a floor for how much the employee can expect to earn, ‘regardless’ of how many hours, days, or shifts the employee works. Second, the reasonable relationship test ensures that the minimum weekly guarantee is not a charade—it sets a ceiling on how much the employee can expect to work in exchange for his normal paycheck, by preventing the employer from purporting to pay a stable weekly amount without regard to hours worked, while in reality routinely overworking the employee far in excess of the time the weekly guarantee contemplates.”
    • Judge Ho then concurred in his own opinion, specifically to address the dissent by Judge Wiener, who had originally concurred in the judgment but now dissents and encourages en banc rehearing. Judge Ho’s introduction to his concurrence seems strikingly personal: “The dissent begins by expressing ‘due respect’ to the majority—and then ends with a well-known literary quote about idiots. Post, at 24, 37 & n.39. It concludes that my opinion in this case is worth ‘nothing.’ Id. at 37. To some, statements like these may be reminiscent of the wisdom of Ricky Bobby. See Talladega Nights: The Ballad of Ricky Bobby (2006) (‘What? I said “with all due respect!”‘). To others, it may call to mind a recent observation by one of our respected colleagues: ‘More often than not, any writing’s persuasive value is inversely proportional to its use of hyperbole and invective.’ Keohane v. Fla. Dep’t of Corrs. Sec’y, __ F.3d , (11th Cir. 2020) (Newsom, J., concurring in the denial of rehearing en banc). As the adage goes, the loudest voice in the room is usually the weakest.” Judge Ho goes on to address the dissent’s argument regarding the interplay–or lack thereof–between 29 CFR § 541.604(b) and 29 CFR § 541.601, in a thorough manner suggesting that the personal attack is an unnecessary framework for that discussion. One is left to wonder if Judge Ho had to write this part as a concurrence to his own opinion because Judge Higginson did not agree with the analysis or because Judge Higginson did not agree with the framework of personal attack. Judge Ho concludes his self-concurrence by taking on Judge Wiener’s appeal to “those of us born, bred, and educated in the oil patch”: “Those of us who were born, bred, and educated in textualism are unfamiliar with the ‘bad for business’ theory of statutory interpretation offered by the dissent under the purported flag of textualism.”
    • Judge Wiener’s dissent opened with an explanation of the reality of the various levels of employees involved in work related to drilling rigs, in order to contextualize the “tool pusher” employee plaintiff. Judge Wiener then opined that to characterize the plaintiff, who made more than $200,000 per year as a tool pusher, as not a high-compensation employee exempt from overtime rules “ignores common sense.”
  • American Guarantee and Liability Insurance Co. v. ACE American Insurance Co., 19-20779, appeal from S.D. Tex.
    • Jones, J. (Jolly, Jones, Willett), insurance law
    • Affirming district court’s judgment that primary insurer on underlying negligence case violated its Stowers duty to accept one of three settlement offers prior to judgment in favor of plaintiff in underlying case and therefore was liable to cover the excess insurer’s contribution to the final post-judgment settlement.
    • Plaintiffs in the underlying case were survivors of a bicycle rider who died after colliding with a truck owned by the defendant in the underlying case that allegedly stopped short in front of the rider. Once prior to trial, the plaintiff had made a settlement demand at the primary insurer’s policy limits of $2 million, and repeated that demand after conclusion of trial but prior to the jury’s verdict. The insurer rejected those demands and countered, which plaintiff rejected. The trial rendered a verdict of $40 million, and the court entered judgment of $28 million after accounting for contributory negligence of the bike rider. The primary insurer and the excess insurer then settled for $10 million, and the excess insurer brought this suit against the principal insurer to recover its portion of the settlement.
    • Under Texas law, under the framework of G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Comm’n App. 1929), the district court ruled in favor of the excess insurer. “Under Texas law, the Stowers duty requires an insurer to exercise ordinary care in the settlement of claims to protect its insureds against judgments in excess of policy limits. But not all settlement demands give rise to a Stowers duty. The Stowers duty is not activated by a settlement demand unless: (1) the claim against the insured is within the scope of coverage, (2) there is a demand within policy limits, and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. Further, Stowers applies only when the settlement’s terms [are] clear and undisputed. The offer must also be unconditional and cannot carry[] risks of further liability.” (Internal quotation marks and footnotes omitted).
    • The Court rejected the primary insurer’s argument that the final settlement demand carried a risk of further liability because the wife of the bicycle rider had sued on her own behalf and to assert the claims of her minor children, which the insurer argued would require further approvals. “There is no evidence that the settlement offer was more favorable to Michelle than her children or that Michelle was operating with interests adverse to those of her children. ACE offers nothing in the record suggesting that, had the third settlement offer been accepted, Michelle would have placed maximizing compensation for her own injuries above her children’s claims.” Accordingly, the Court held that there was no evidence of an adverse interest between the mother’s claims and the children’s claims that would have required the appointment of a guardian ad litem or allowed for subsequent collateral challenge of the demanded settlement by the children. “Because the record is void of any specter of adverse interests between Michelle and her children had the third lump sum settlement offer been accepted, her children would have been bound by it. Accordingly, the offer generated a Stowers duty because it ‘proposed to release the insured fully’ and it was not conditional.”
  • Rivera v. Kirby Offshore Marine, LLC, 19-40799, appeal from S.D. Tex.
    • Stewart, J. (King, Stewart, Southwick), Longshore and Harbor Worker’s Compensation Act, maritime law
    • Affirming judgment of $11.7 million in favor of harbor pilot for lost future wages after injury suffered aboard tug he was piloting rendered him unable to continue working as a harbor pilot.
    • The Court held first that the pilot was an independent contractor, rather than an employee, and therefore not covered under the LHWCA, thus making him eligible to sue under the seaworthiness rubric of Sieracki.
    • The Court then held that there was no clear error in the district court’s conclusion that the tugboat provided by defendants was unseaworthy. “Captain Rivera sufficiently demonstrated that his injuries were caused by his fall over the unmarked hatch door and that the door was a tripping hazard. Tripping hazards may render a vessel unseaworthy.”
    • The Court next rejected defendant’s argument that the pilot was contributorily negligent because he was still wearing his sunglasses as he boarded the tugboat. “The district court determined that Captain Rivera did not act unreasonably when he wore sunglasses aboard the Tarpon on a sunny August day. The district court also determined that the hazardous condition that caused Captain Rivera’s injuries was not open and obvious. Even if he had not been wearing the sunglasses, it is not clear that he could have seen the hatch doorstep and avoided his injury.”
    • The Court then held that there was no clear error in the district court’s admission of evidence of subsequent remedial measures, as it was not clear that the admission of that evidence violated the defendant’s substantial rights. Finally, the Court held that there was no clear error in the district court’s acceptance of plaintiff’s expert’s damages calculation based on k-1’s rather than on individual tax returns.
  • Molina-Aranda v. Black Magic Enterprises, LLC, 19-50638, appeal from W.D. Tex.
    • Haynes, J. (Owen, Dennis, Haynes), RICO, Fair Labor Standards Act
    • Affirming dismissal of RICO claims and denial of leave to amend complaint, reversing dismissal of FLSA claims, vacating dismissal without prejudice of state law claims, and remanding for further proceedings.
    • Plaintiffs had been brought to the United States under H-2B visas to work as construction workers, but were then employed as truck drivers though they did not receive the higher compensation for truck drivers, as the defendants allegedly unlawfully deducted from their pay, failed to pay them for overtime, and sometimes failed to pay them entirely. Plaintiffs alleged RICO claims of conspiracy to defraud the government, as well as FLSA claims and state law claims related to their compensation allegations.
    • The Court upheld the dismissal of plaintiffs’ RICO claims, holding that “Plaintiffs’ allegations, taken as true, do not support a conclusion that their underpayment injuries were directly caused by the Ramirezes’ alleged fraud in obtaining the H-2B visas. Rather, their complaint shows that the injury was caused by the alleged underpayments which were not required by the alleged fraud.”
    • The Court then addressed the FLSA issue regarding applicability of the enterprise coverage provision, which extends the FLSA’s requirements to any enterprise that either “has employees engaged in commerce or in the production of goods for commerce” (the “engaged-in clause”) or “has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” (the “handling clause”). 29 U.S.C § 203(s)(1)(A)(i). The Court disagreed with the district court’s conclusion that plaintiffs’ allegations were conclusory that “by employing more than 11 drivers and hauling water, sand, gravel[,] and construction and oilfield equipment both interstate and intrastate,” as well as by “handling, selling, or otherwise working on goods or materials (such as heavy trucks, fuel and equipment) that have been moved in or produced for commerce by any person.” The Court held that the handling clause does not impose a strenuous pleading requirement, and does not require present-tense continuity. The Court found that plaintiffs’s pleadings “identified water, sand, gravel, construction equipment, oilfield equipment, trucks, and fuel as goods or materials that had potentially been moved in commerce before being handled by Black Magic and its employees. At least some of these items are plausibly goods or materials: they are all items one could plausibly conclude are used in or produced during construction and trucking work. It is also plausible that some or all of these items had travelled interstate at some point in their life cycle. Texas is a large state with considerable industrial capacity, but it does not stretch the definition of plausible for Plaintiffs to allege that at least some of the raw materials and machinery that they handled came from beyond Texas’s borders. Importantly, Plaintiffs will have to provide proof of these allegations at the summary judgment or trial stage (after they have had a chance to conduct discovery), but they are not required to provide further details than they have at this stage.”
    • The Court also rejected the district court’s imposition of a requirement on plaintiffs that they calculated precisely how much in wages they were owed and prove that amount at the pleadings stage.
  • U.S. v. Duran-Gomez, 20-20147, appeal from S.D. Tex.
    • Elrod, J. (Barksdale, Elrod, Ho), criminal, speedy trial
    • Reversing district court’s dismissal of capital charges stemming from double homicide for violation of the speedy trial guarantee of the Sixth Amendment, and remanding for further proceedings.
    • Defendant had been indicted in 2010 for a 2006 double-homicide; he did not object to co-defendants’ and the government’s various motions to continue the trial, and himself had moved to continue the trial, until in August 2019 he moved for dismissal of his charges for violation of the speedy trial guarantees of the Sixth Amendment. The district court granted that motion.
    • The Court noted that the speedy trial period attached at least by 2010, and resulted in at least nine years of delay, weighing heavily against the government.
    • However, the Court then noted that defendant had either moved or joined in co-defendants’ motions for continuance seventeen times, and that in each of those at least one of the reasons listed was his own counsel’s independent need for the delay (i.e., not solely attributable to the government’s negligence). And the Court also held that the four-year death penalty review process by the government was protracted at least in part by the defendant’s own claims of intellectual disability. “Deciding whether it should seek the death penalty for a defendant is one of the government’s gravest responsibilities. When a defendant alleges that he has a condition which would make his death at the government’s hand unconstitutional, this task becomes even weightier. The path to decision should be proportionately ruminative.” Accordingly, on the factor of the reason for the delay, the Court held the factor weighed heavily against the defendant.
    • The Court also held that the factor of diligently pursuing speedy trial rights weighed heavily against the defendant because he did not invoke those rights until 2019, meanwhile moving repeatedly for continuances.
    • The Court then held that, while prejudice for a delay longer than five years may be presumed, this presumption is rebutted by actions showing the defendants’ acquiescence in the delay.
  • Baisley v. International Association of Machinists and Aerospace Workers, 20-50319, appeal from W.D. Tex.
    • Clement, J. (Clement, Ho, Duncan), labor law, First Amendment
    • Affirming dismissal of plaintiff’s claims that the defendant union’s requirement of an affirmative opt-out from payment of full union dues violated plaintiff’s First Amendment rights and rights under the Railway Labor Act.
    • The Court held that its prior precedents upholding this same union’s opt-out requirement remained good law in regards to private-sector employment, as recent Supreme Court cases finding a constitutional violation from similar opt-out procedures were applicable only to public-sector employment.

Unpublished

  • U.S. v. Israel, 17-10948, appeal from N.D. Tex.
    • per curiam (Owen, Dennis, Haynes), Dennis, J., concurring in judgment; habeas corpus, ineffective assistance of counsel
    • Affirming district court’s denial of habeas petition on ineffective assistance of counsel (“IAC”) claims that trial counsel was ineffective for failing to (1) investigate Israel’s mental health history and competency; (2) move for a competency examination and hearing; (3) investigate and advise Israel regarding an insanity defense; and (4) present mitigating evidence of Israel’s mental health at sentencing.
  • U.S. v. Hardy, 19-30159, appeal from E.D. La.
    • per curiam (Dennis, Southwick, Ho), criminal, guilty plea
    • Affirming denial of defendant’s motion to withdraw guilty plea.
  • U.S. v. Taylor, 19-30222, appeal from E.D. La.
    • per curiam (Wiener, Engelhardt, Oldham), criminal, sentencing
    • Vacating sentence on finding of plain error, and remanding for resentencing.
  • Alaniz v. U.S. Renal Care, Inc., 19-40043, appeal from S.D. Tex.
    • Owen, J. (Owen, Haynes, Costa), employment discrimination, retaliation, Age Discrimination in Employment Act
    • Affirming summary judgment dismissal of retaliation claim against employer, but reversing and remanding dismissal of age discrimination claims.
  • Montoya-Velazquez v. Barr, 19-60622, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying petition for review of BIA order dismissing appeal from IJ order denying application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Castillo-Cruz v. Barr, 19-60887, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Costa), immigration
    • Dismissing petition for review of BIA order denying relief from removal on grounds of a defective notice to appeal for lack of jurisdiction, and otherwise denying petition for review.
  • U.S. v. Regan, 20-10259, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Affirming 50-year sentence on guilty-plea to child pornography charges.
  • U.S. v. Martinez-Figueroa, 20-10647, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Granting motion for summary affirmance of 30-month sentence on guilty plea to illegal reentry after removal.
  • U.S. v. Garcia, 20-20083, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, supervised release
    • Affirming imposition of special work-authorization condition on supervised release term as part of sentencing on guilty plea to illegal reentry.
  • Ardelean v. Wal-Mart, Inc., 20-20202, appeal from S.D. Tex.
    • per curiam (Clement, Ho, Duncan), negligence
    • Affirming summary judgment in favor of defendant on holding that pavement condition was not unreasonably dangerous.
  • U.S. v. Stockman, 20-20465, appeal from S.D. Tex.
    • per curiam (Haynes, Duncan, Engelhardt), criminal, compassionate release
    • Denying as moot defendant’s appeal of denial of motion for compassionate release after issuance of presidential directive that he be released.
  • U.S. v. Purser, 20-40123, appeal from E.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, search and seizure
    • Affirming convictions of possession of a firearm by a felon and assaulting, resisting, or impeding certain employees, and affirming denial of motion to suppress.
  • U.S. v. Perez-Rodriguez, 20-50075, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Costa), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyes-Cardona, 20-50460, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Granting motion for summary affirmance of 21-month sentence for illegal reentry.