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The panel opinion, special concurrence, and dissent previously issued in this case were withdrawn, and the following opinions were substituted in their place. Plaintiff filed suit against his employer, BNSF, for disability discrimination and retaliation after he was diagnosed with Parkinson's disease and later placed on medical leave. The Fifth Circuit reversed the district court's grant of summary judgment to BNSF on plaintiff's disability discrimination claim because there was a fact issue as to whether BNSF discriminated against plaintiff. However, the court affirmed the district court's judgment on the retaliation claim and held that plaintiff failed to establish a prima facie case of an unlawful retaliation. View "Nall v. BNSF Railway Co." on Justia Law

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The Fifth Circuit denied a petition for rehearing and petition for rehearing en banc. The court substituted this opinion in place of its prior opinion. The court affirmed the district court's judgment as to plaintiff's hostile work environment claim and held that plaintiff sufficiently alleged sustained harassment that undermined his ability to work. In this case, he was repeatedly subjected to behavior that was hostile, intimidating, and bullying, and it was done publicly over a period of more than three years. Furthermore, defendant was deliberately indifferent to this racially hostile work environment. The court also affirmed as to the 42 U.S.C. 1981 claim and held that defendant retaliated after plaintiff complained about discrimination by transferring him to the night shift in a different division. Therefore, plaintiff's allegations supporting unlawful retaliation establish a violation of his constitutional rights, one that a reasonable official would know was unlawful. However, the court held that defendant was entitled to qualified immunity on the First Amendment retaliation claim where it was not clearly established that an internal complaint of discrimination made only to supervisors, primarily to vindicate one's own rights, qualified as speech made as a "citizen" rather than as an "employee." View "Johnson v. Halstead" on Justia Law

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The Fifth Circuit dismissed defendant's appeal of the district court's denial of his motion to relocate his supervised release under 18 U.S.C. 3605. In this case, defendant was not, and still is not, on supervised release. The court held that neither 28 U.S.C. 1291, 18 U.S.C. 3742(a), nor Federal Rule of Appellate Procedure 4(b) provided it with jurisdiction to review the appeal. The court held that the collateral order doctrine was inapplicable in this case and did not confer appellate jurisdiction. View "United States v. Pittman" on Justia Law

Posted in: Criminal Law

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Defendant appealed his sentence after he was convicted of conspiring to transport undocumented immigrants and transporting undocumented immigrants. The Fifth Circuit affirmed the district court's imposition of a sentencing enhancement for recklessness under USSG 2L1.1(b)(6) where defendant consciously disregarded a substantial and unjustifiable risk by crossing a deep part of the Rio Grande river with the immigrants. However, the court reversed the district court's denial of a sentence reduction under USSG 3E1.1 for acceptance of responsibility for the offense where he did not deny the factual elements of his guilt. Accordingly, the court remanded for resentencing. View "United States v. Najera" on Justia Law

Posted in: Criminal Law

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The Fifth Circuit denied the petition for rehearing, withdrew the prior opinion, and substituted the following opinion. The court reversed the breach of contract claim and held that there was ambiguity in a mortgage contract's escrow provisions and thus the district court erred by granting summary judgment to defendants on claims arising from that ambiguity. In this case, plaintiff was entitled to proceed to trial on his claim that Ocwen breached the contract by paying his 2010 taxes before they became delinquent. Furthermore, the district court erred as a matter of law by determining that Ocwen had provided contractually adequate notice of its revocation of the Waiver Agreement. The court affirmed the district court's summary judgment for Ocwen in plaintiff's unclean hands cause of action, which was mislabeled as an affirmative defense. Because it was premature to conclude that Ocwen was entitled to summary judgment on its foreclosure counterclaim, the court vacated the foreclosure ruling and remanded for reconsideration. The court affirmed the district court's grant of summary judgment for Ocwen on plaintiff's Real Estate Settlement Procedures Act (RESPA) claim and Texas Debt Collection Practices Act (TDCPA) claim. View "Wease v. Ocwen Loan Servicing, LLC" on Justia Law

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After defendant signed a plea agreement pleading guilty of receipt of child pornography, he claimed that he lacked the requisite mens rea, the government entrapped him, and the factual basis of the plea was inaccurate. However, at the pretrial conference, defendant again pleaded guilty under the original plea agreement. In this appeal, defendant argued that the district court committed plain error by restricting his right to withdraw the guilty plea and by involving itself in plea negotiations. The court held that the district court did not err, plain or otherwise, where defendant never formally requested to withdraw his plea but, instead, continued to waver before ultimately deciding to persist in his original guilty plea. The court rejected defendant's claim that the district court improperly conditioned the withdrawal of the plea on his decision to pursue an affirmative defense. The court also held that the judge's stray comments did not amount to a Federal Rule of Criminal Procedure 11(d)(1) violation, and the district court did not improperly participate in plea discussions in violation of Rule 11(c)(1). Accordingly, the court affirmed the district court's judgment. View "United States v. De Leon" on Justia Law

Posted in: Criminal Law

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The Fifth Circuit denied a petition for review of the the BIA's decision affirming the IJ's determination that petitioner was removable because she was convicted of a drug offense. Petitioner argued that she was not removable because she was convicted for possessing a small amount of marijuana for personal use. The court held that the BIA's interpretation of 8 U.S.C. 1227(a)(2)(B)(i)'s personal-use exception was reasonable. Applying the BIA's circumstances-specific approach, the court held that petitioner's conviction did not fall within the personal-use exception. In this case, substantial evidence supported the BIA's findings that petitioner possessed 54.6 pounds of marijuana—substantially more than the personal-use exception’s 30-gram threshold. View "Cardoso de Flores v. Whitaker" on Justia Law

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Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1), and enhanced per the Armed Career Criminal Act (ACCA). Defendant alleged that the district court plainly erred in applying the ACCA enhancement and that he received ineffective assistance of counsel. The Fifth Circuit dismissed the appeal as to both claims, holding that defendant's ACCA enhancement claim was barred by his appeal waiver and his ineffective assistance of counsel claim was not ripe for review on direct appeal. View "United States v. Kelly" on Justia Law

Posted in: Criminal Law

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After defendant pleaded guilty to trafficking in meth, she moved to suppress evidence, arguing that an officer's tap of her tire was a search not supported by probable cause. The district court denied the motion. The Fifth Circuit held that the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test for deciding what is a search. However, the officer had probable cause to tap the tire. In this case, the tires were wobbly, the truck was veering outside of its lane, and the stripped bolts gave a reasonable officer probable cause to believe that the tire posed a safety risk. Accordingly, the court affirmed the judgment. View "United States v. Richmond" on Justia Law

Posted in: Criminal Law

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A former student filed suit against the school district for violating Title IX of the Education Amendments of 1972, alleging that the school district was deliberately indifferent to her alleged sexual harassment and that the school district retaliated against her by withholding Title IX protections. The district court granted in part and denied in part the school district's motion for summary judgment. At issue on appeal was the deliberate indifference claim. The Fifth Circuit rejected plaintiff's contention that the question of whether a school district acted with deliberate indifference generally should be decided by a jury. The court held that summary judgment in the school district's favor was appropriate because there was no genuine dispute that the school district was not deliberately indifferent to plaintiff's claims of harassment. The court rejected plaintiff's claim that allowing deliberate-indifference claims to be resolved by jury deliberations served the underlying purpose of discouraging gender-based discrimination. View "I.F. v. Lewisville Independent School District" on Justia Law