November 11-12, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • New Falls Corp. v. LaHaye, 19-30795, appeal from W.D. La.
    • Costa, J. (Elrod, Southwick, Costa), bankruptcy
    • Affirming the district court’s judgment that the terms of a prior bankruptcy proceeding of a grocery store were binding in a subsequent personal bankruptcy by the grocery store’s owners.
    • A lender to a grocery store made a claim in the grocery store’s bankruptcy for $325,000; under the Chapter 11 plan, the bankruptcy court awarded the store and the land to the creditor, and assessed that value at $225,000, leaving a balance of $100,000 to be satisfied by the couple who owned the store and who had been guarantors on the loan. When the couple filed a personal bankruptcy, the lender sought the full $325,000 from them, as the store and land had not yet been transferred under the store’s Chapter 11 Plan, arguing that the vacant property had declined in value.
    • The Court held that, under section 1141(a) of the Bankruptcy Code, “the provisions of a confirmed bankruptcy plan bind both the debtor and its creditors, As a result, this creditor is bound by the provision of the first bankruptcy plan awarding it the grocery store in exchange for a fixed-value credit against the guaranteed debt.”
  • BST Holdings, L.L.C. v. Occupational Health and Safety Administration, 21-60845, petition for review of OSHA Emergency Temporary Standard
    • Engelhardt, J. (Jones, Duncan, Engelhardt), Duncan, J., concurring; COVID-19, administrative law
    • Granting stay pending full judicial review of OSHA’s mandate that employees of covered employers be vaccinated for COVID-19 or undergo weekly testing and wear masks in the workplace.
    • The Court held that the challengers of the Mandate had a likelihood of success on the merits. “[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported ’emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.”
    • The Court also held it was likely that challengers would succeed in showing the Mandate to be unconstitutional. Under the Commerce Clause, the Court held that “[a] person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power.” (Internal citations omitted). The Court also held that “concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”
    • The Court held that denying the stay would result in irreparable harm to the challengers. “For the individual petitioners, the loss of constitutional freedoms ‘for even minimal periods of time … unquestionably constitutes irreparable injury.’ Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees.” (Internal citations omitted).
    • The Court also held that issuance of the stay would do no harm to OSHA, and that the stay is “firmly in the public interest.”
    • Judge Duncan concurred. “Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. See NFIB v. Sebelius, 567 U.S. 519, 549–61 (2012). Whether OSHA can do so does not.”

Unpublished

  • U.S. v. Lara-Garcia, 15-40108, appeal from S.D. Tex.
    • per curiam (Davis, Haynes, Graves), criminal, sentencing
    • On remand from the U.S. Supreme Court, reforming judgment for guilty-plea conviction to illegal reentry to reflect sentencing under 8 U.S.C. § 1326(b)(1) because defendant’s prior Texas aggravated assault conviction does not qualify as a “crime of violence” under § 1326(b)(2), and affirming sentence as reformed.
  • Burch v. America’s Servicing Co., 20-11074, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), frivolous appeal
    • Denying motion to remand to district court to pay appeal filing fee, dismissing appeal as frivolous, and issuing sanctions.
  • Winfrey v. Johnson, 20-20477, appeal from S.D. Tex.
    • per curiam (Clement, Southwick, Willett), § 1983
    • Affirming jury verdict in favor of plaintiffs in malicious prosecution case.
  • Fisher v. Bilfinger Industrial Services Inc., 20-30265, appeal from W.D. La.
    • per curiam (Higginbotham, Jones, Costa), employment discrimination
    • Granting petition for panel rehearing, withdrawing prior opinion and entering new opinion, but still affirming the dismissal of plaintiff’s employment discrimination and retaliation claims.
  • U.S. v. Reyes-Aguilar, 20-50806, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hamilton v. Mike Bloomberg 2020, Inc., 21-10576; c/w Jefferson v. Mike Bloomberg 2020, Inc., 21-10577; c/w Snow v. Mike Bloomberg 2020, Inc.; appeals from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), employment compensation, diversity jurisdiction
    • Holding that defendant met its burden of showing amount in controversy was met for purposes of supporting removal under diversity jurisdiction of claims brought by employees of campaign for compensation.
  • U.S. v. Ortiz-Melendez, 21-40432, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez-Longoria, 21-50058, appeal from W.D. Tex.
    • per curiam (Stewart, Haynes, Ho), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • U.S. v. Berrios-Rios, 21-50425, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Granting summary affirmance of sentence upon guilty-plea conviction of illegal reentry.