December 2010 Archives

False Tax Return Conviction Affirmed

In US v. Bishop, No. 09-20750, the court affirmed defendant's conviction for making a false statement in a tax return where 1) the trial court's core finding, moreover, that the government was not delaying the trial in order to gain an impermissible advantage at trial, was based on findings of fact that were not clear error; 2) the district court did not prospectively prevent defendant from emphasizing the elements of the government's case that she considered weakest; and 3) it was within the district court's discretion to decline to prolong its original proceedings to consider matters that would be better raised collaterally.

ERISA Health Care Benefits Action

In Crosby v. La. Health Serv. & Indemn. Co., No. 10-30043, an Employee Retirement Income Security Act action to recover denied health care benefits, the court vacated summary judgment for defendants where the district court denied plaintiff's motion to compel based on an erroneous view of the scope of admissible and discoverable evidence in ERISA actions.

FLSA Overtime Action

In Martin v. PepsiAmericas, Inc., No. 09-60896, an action for unpaid overtime wages allegedly due under the Fair Labor Standards Act, the court reversed the dismissal of the action where setoffs in unpaid overtime matters were improper unless the money being set-off could be considered wages that the employer pre-paid to the plaintiff-employee.

IDEA Action Alleging Denial of Special Education Services

In D.A. v. Houston Indep. Sch. Dist., No. 09-20551, an action claiming that defendant school district failed to provide special education services to plaintiff, the court affirmed summary judgment for defendants where plaintiffs did not furnish proof of intentional discrimination as required by the Individuals with Disabilities in Education Act and the Americans with Disabilities Act, and 42 U.S.C. section 1983 offered no additional cause of action for plaintiff.

Action Claiming Sexual Assault at Mental Health Facility

In Rodriguez v. Christus Spohn Health Sys. Corp., No. 10-40371, an action alleging that, while receiving voluntary inpatient mental health treatment at defendant hospital, plaintiff was sexually assaulted by a staff member, the court vacated the denial of defendants' Fed. R. Civ. P. 12(b)(1) motion to dismiss plaintiff's state law claims based on government immunity where 1) plaintiff's claim under Chapter 74 of the Texas Civil Practice and Remedies Code was a tort based on a statute that contained no independent waiver of immunity; 2) defendant was immune to any claim under Chapter 81 except as allowed by section 81.010; and 3) pursuant to the election of remedies provision of the Tort Claims Act, plaintiff's claims against the alleged assailant must be dismissed.

Action for Health Insurance Overpayments

In Quality Infusion Care, Inc. v. Health Care Serv. Corp., No. 09-20188, an action by a non-contracted healthcare provider to defendant health insurance policyholders, the court affirmed summary judgment for defendant where defendant had a contractual right under all three plans to privately deduct overpayments it had previously made to plaintiff from subsequent claims it was obligated to pay plaintiff.

Denial of Drug Habeas Petition Affirmed

In Tharpe v. Thaler, No. 09-10632, a prosecution for possession with intent to distribute cocaine, the court affirmed the denial of petitioner's habeas petition where, notwithstanding the Supreme Court's holding in Burton v. Stewart, the district court correctly dismissed petitioner's deferred-adjudication claims as untimely.

Challenge to NTSB License Suspension

In Dresser v. MEBA Med. & Benefits Plan, No. 10-30301, an action challenging the National Transportation Safety Board's (NTSB) suspension of plaintiff as a licensed marine engineer based on his marijuana use, the court affirmed the dismissal of the complaint where the Coast Guard and NTSB statutory and regulatory scheme provided for judicial review, but only in a court of appeals, and only after an appeal to the NTSB.

Appeal by Objectors to Hurricane Settlement

In In re: Katrina Canal Breaches Litig., No. 09-31156, an appeal by objecting members of a proposed settlement class of plaintiffs damaged or injured by Hurricanes Katrina or Rita, seeking review of the district court's certification of a limited fund mandatory class under Federal Rule of Civil Procedure 23(b)(1)(B) and its approval of a final class settlement, the court reversed where 1) the Supreme Court's opinion in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), required decertification of the mandatory class because the settlement failed to provide a procedure for distribution of the settlement fund that treated class claimants equitably amongst themselves; and 2) the settlement was not fair, reasonable and adequate because its proponents failed to show that the class members would receive some benefit in exchange for the divestment of their due process rights in a mandatory class settlement.

Civil Rights Action Based on Wrongful Death

In Kovacic v. Villarreal, No. 10-40208, an action under 42 U.S.C. section 1983 against City of Laredo police officers to recover damages for the death of plaintiff's decedent, the court reversed the denial of qualified immunity where there was also no evidence in the record showing that the officers had any reason to think that plaintiff's decedent likely would not call his wife to pick him up as he indicated, or that the officers were aware that he was lacking the resources to secure another way home.

Equal Access to Justice Act Attorney's Fees Issue

In Kellems v. Astrue, No. 09-10676, the court vacated plaintiff's appeal from the denial of social security benefits, the district court's order awarding attorney's fees to plaintiff, where a federal court may not order an award of attorney's fees for work performed before a federal agency pursuant to 42 U.S.C. section 406(a) to be offset by an award of attorney's fees for work performed before a federal court pursuant to the Equal Access to Justice Act.

Conviction for False Statements to Bank Reversed

In US v. Rabhan, No. 09-60683, the court reversed defendant's conviction for conspiracy to violate 18 U.S.C. section 1014 by making material false statements for the purpose of influencing a federally insured bank and a U.S. agency in connection with a loan to procure a catfish farm in Mississippi where the government failed to rebut defendant's prima facie showing that the conspiracies charged in Georgia and Mississippi were a single conspiracy.

Action Alleging Formaldehyde Exposure in FEMA Trailers

In In re: FEMA Trailer Formaldehyde Prods. Liab. Litig., No. 09-31131, an action based on allegedly injurious formaldehyde exposure in FEMA trailers following Hurricanes Katrina and Rita, the court affirmed the dismissal of the complaint where 1) the district court's attempt to provide trial results that would offer a firm basis for resolution of the thousands of outstanding cases would be thwarted and unreasonably delayed by granting a continuance; and 2) the district court's action was not so much a sanction against plaintiff as a necessary device to maintain an orderly resolution of the massed cases.

Action Against DHL Regarding Failure to Collect COD Payments

In Tran Enters., LLC v. DHL Express (USA), Inc., No. 10-20115, an action claiming that defendant DHL failed to remit collect-on-delivery (COD) payments totaling $21,991.72 to plaintiff, the court affirmed summary judgment for defendant where plaintiff failed to present any summary judgment evidence that true conversion had occurred, instead merely offering the fact that it did not receive the checks.

Dismissal of Habeas Petition as Untimely Affirmed

In Matthis v. Cain, No. 09-30576, a second-degree murder prosecution, the court affirmed the dismissal of petitioner's habeas petition as untimely where, because the overturning and reinstatement of petitioner's conviction occurred solely through post-conviction review, this did not affect the date his conviction became final under direct review and thus his federal habeas petition was untimely.

Convention Against Torture Immigration Case

In Hakim v. Holder, No. 09-60549, a petition for review of a Board of Immigration Appeals order finding that petitioner's money laundering conviction was for more than $10,000, and constituted a particularly serious crime under 8 U.S.C. section 1231(b)(3)(B)(ii), the court granted the petition where the BIA applied an incorrect legal standard in its Convention Against Torture consideration, and the case needed to be decided under an "actual knowledge" or "willful blindness" standard.

Drug Conviction Affirmed

In US v. Morin, No. 09-40702, the court affirmed defendant's convictions for possession with intent to distribute more than 1,000 kilograms of marihuana and conspiracy to commit that same offense, holding that, even if the district court erred in admitting allegedly profiling testimony, it did not affect defendant's substantial rights.

Action Alleging Wrongful Demotion of Professor

In Gentilello v. Rege, No. 09-11216, an action by a tenured professor at the University of Texas Southwestern Medical Center against his supervisors under 42 U.S.C. section 1983, alleging that he was wrongfully demoted without due process of law in violation of the Fourteenth Amendment, the court affirmed judgment on the pleadings for defendants where the due process clause does not protect plaintiff's specific job duties or responsibilities absent a statute, rule, or express agreement reflecting an understanding that he had a unique property interest in those duties or responsibilities.

Denial of Summary Judgment in Insurance Action Affirmed

In Holt v. State Farm Fire & Cas. Co., No. 09-30795,  an action seeking to recover payment under plaintiff's homeowners policy, the court affirmed the denial of summary judgment to defendant based on the statute of limitations where the amended prescription period under Louisiana law applied retroactively to plaintiff's claim.