Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

The Fifth Circuit denied the petition for review challenging the BIA's determination that petitioner is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture (CAT). The court concluded that the BIA did not err by holding that the 2019 IJ could reexamine whether petitioner's felony assault conviction was a particularly serious crime. After determining that the court had jurisdiction to review petitioner's alternative argument, the court concluded that the BIA did not err in determining on the merits that petitioner was ineligible for withholding of removal because his felony assault conviction was a particularly serious crime. Finally, the court concluded that a foreign government's "failure to apprehend the persons threatening the alien" or "the lack of financial resources to eradicate the threat or risk of torture" do not constitute sufficient state action for petitioner to be entitled to protection under the CAT. View "Aviles-Tavera v. Garland" on Justia Law

D&G, a Medicare service provider for nursing homes and homebound individuals, filed suit against the H.H.S. Secretary in federal court seeking repayment of recouped funds, which then amounted to $4,136,258.19 in principal and $593,294.54 in accrued interest. The district court dismissed D&G's case for lack of subject matter jurisdiction, holding that there was no federal court jurisdiction pursuant to 42 U.S.C. 405(g), as applied to Medicare appeals by 42 U.S.C. 1395ff(b)(1)(A).The Fifth Circuit held that "effectuations" of final agency decisions when sought to liquidate the amount of repayment owed, are reviewable under 42 U.S.C. 405(g) as continuous aspects of the initial, properly exhausted, administrative decision. The court concluded that the district court had jurisdiction under section 405(g) to resolve this dispute because "effectuations" are inextricably intertwined with the initial exhausted agency action. Therefore, the district court committed reversible error when it granted the Secretary' motion to dismiss. Furthermore, the Secretary's attempted reopening of the "effectuation" was untimely and the purported reopening was void ab initio. The court reversed and remanded for further proceedings. View "D&G Holdings, LLC v. Becerra" on Justia Law

The Fifth Circuit denied the petition for panel rehearing, withdrew its prior opinion, and substituted the following opinion. As an initial matter, petitioner conceded that her argument regarding recission of her in absentia removal order and Pereira v. Sessions, 138 S. Ct. 2105 (2018), was foreclosed by precedent. The court denied the petition for review, finding no indication that the BIA abused its discretion by applying an incorrect legal standard when it denied petitioner's motion to reopen. The court also concluded that the BIA did not abuse its discretion in determining that petitioner did not make a prima facie showing for cancellation of removal. View "Parada-Orellana v. Garland" on Justia Law

The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress evidence of sexually explicit Facebook chats with an underage minor on the ground that Facebook and NCMEC are government agents. The court concluded that defendant failed to carry his burden of showing that Facebook is a government agent or instrument, and thus the private search doctrine applies. The court also concluded that later investigative techniques employed by NCMEC and government officials did not impermissibly expand the scope of the original search. View "United States v. Meals" on Justia Law

The Fifth Circuit affirmed defendant's conviction for using two counterfeit passports to open bank accounts, but vacated his sentence and remanded for resentencing. The court concluded that the district court did not err, let alone abuse its discretion, in admitting two webcam photos in evidence where the photos were properly authenticated. The court also concluded that any error in excluding the photo of the fake driver's license was harmless. However, the court concluded that the district court clearly erred in calculating defendant's guideline range when it used USSG 1B1.3(a)(2)'s broad definition of relevant conduct, even though that provision does not apply to defendant's offenses of conviction. Furthermore, application of the correct definition would have left defendant with a guidelines range of 10-16 months for each count, rather than the 27-33 months for each count that the district court calculated. View "United States v. Okulaja" on Justia Law

The Fifth Circuit affirmed defendant's 51-month sentence imposed after a jury found him guilty of fraudulently obtaining federal worker's compensation benefits and stealing government property. The court concluded that the district court did not procedurally err by calculating defendant's sentencing range under USSG 2B1.1, which sets forth the applicable guidelines for crimes involving fraud and deceit. In this case, the facts in the PSR were derived from the trial testimony of an Air Force human resources specialist who explained that defendant stood to receive more than $850,000 in benefits over the course of his life. Furthermore, the trial testimony, which formed the basis of the specific loss amount adopted by the PSR and district court, went entirely unchallenged. The court also concluded that defendant's top-of-the-guidelines sentence was substantively reasonable where the district court considered the 18 U.S.C. 3553(a) factors and the sentence imposed does not overstate defendant's culpability in the underlying offense. View "United States v. Vargas" on Justia Law

The Fifth Circuit affirmed the district court's dismissal for want of jurisdiction of plaintiff's action against HuffPost, alleging that it libeled him by calling him a white nationalist and a Holocaust denier. Plaintiff filed suit against HuffPost in the Southern District of Texas, but HuffPost is a citizen of Delaware and New York. Furthermore, HuffPost has no physical ties to Texas, has no office in Texas, employs no one in Texas, and owns no property there. In this case, plaintiff identifies only one link to Texas that relates to the dispute: the fact that HuffPost's website and the alleged libel are visible in Texas. The court stated that mere accessibility cannot demonstrate purposeful availment. The court explained that although HuffPost's site shows ads and sells merchandise, neither act targets Texas specifically. Even if those acts did target Texas, the court concluded that neither relates to plaintiff's claim, and thus neither supports specific jurisdiction. Finally, plaintiff has not met his burden to merit jurisdictional discovery. View "Johnson v. TheHuffingtonpost.com, Inc." on Justia Law

The Fifth Circuit granted defendants' motion for a stay of discovery in this class action lawsuit while the court reviews their appeal under Federal Rule of Civil Procedure 23(f). Boeing and Southwest were sued for allegedly conspiring to conceal design defects in Boeing's 737 MAX 8 aircraft and thus defrauding airline ticket purchasers. After considering the Nken factors, the court concluded that Boeing and Southwest have made a strong showing that the court is likely to reverse the class-certification decision because they raised substantial predominance questions regarding damages. Furthermore, defendants have also made a strong showing regarding irreparable harm; plaintiffs have not plausibly alleged that they or any other parties will be irreparably injured by delaying further discovery until the conclusion of the Rule 23(f) appeal; and the public interest supports staying district court proceedings to avoid potentially wasteful and unnecessary litigation costs where, as here, defendants have shown a substantial likelihood of success on appeal. View "Earl v. Boeing Company" on Justia Law

The Fifth Circuit affirmed the dismissal of Walmart's action challenging the government's interpretation of the Controlled Substances Act (CSA) as it applies to pharmacists who dispense prescription opioids. In this case, Walmart points to no rule, guidance, or other public document setting forth the positions it seeks to contest. The court concluded that, because Walmart identifies no agency action, as that term is used in the Administrative Procedure Act (APA), the suit is barred by sovereign immunity. Furthermore, even if the action was not barred by sovereign immunity, the court concluded that Walmart's failure to contradict a definite government position means that it has not demonstrated the existence of a ripe case or controversy, as required by Article III. Accordingly, the district court appropriately dismissed based on lack of subject matter jurisdiction. View "Walmart v. Department of Justice" on Justia Law

After a RealPage, Inc. employee clicked a fake link in a seemingly innocuous email and provided login information for RealPage's account with Stripe, Inc., a third party payment processor, phishers stole the login credentials and used them to divert millions of dollars in rent payments from tenants intended for RealPage's property manager clients. RealPage and Stripe recovered some of the stolen funds but lost about $6 million. RealPage reimbursed its clients and filed claims under its commercial crime insurance policies for the stolen funds, but its primary insurer denied coverage.The Fifth Circuit affirmed the district court's grant of summary judgment in favor of the insurer, concluding that the funds RealPage lost were not covered losses because RealPage never "held" them. Therefore, the insurer was within its rights to deny coverage of the stolen funds intended for RealPage's property manager clients. Furthermore, because the insurer's coverage was not exhausted, Beazley Insurance was also within its rights to deny coverage under RealPage's excess policy. Finally, because RealPage is not entitled to coverage under the policies at issue, its arguments that the insurer breached Chapter 541 and 542 of the Texas Insurance Code by not timely paying its claims are similarly without merit. View "Realpage, Inc. v. National Union Fire Insurance Co. of Pittsburgh" on Justia Law