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April 15, 2015
  United States v. Hollingsworth - Fifth Circuit
Headline: Fifth Circuit Rules that Defendants Tried for Petty Offenses Committed on Federal Enclaves Are Not Entitled to a Trial Before an Article III Judge.

Area of Law: Article III of the United States Constitution.

Issue Presented: Whether a defendant charged with a petty offense on a federal enclave acquired by Congress pursuant to Article I, Section 8, Clause 17 of the United States Constitution is entitled to a trial before an Article III judge.

Brief Summary: A federal magistrate judge tried David Hollingsworth for a petty offense committed on a federal enclave, namely a military base located in Louisiana. The magistrate judge conducted a bench trial, entered a verdict of guilty, and sentenced Hollingsworth to six months in federal prison. Hollingsworth objected to trial before the federal magistrate judge, but the magistrate judge held that she had jurisdiction to try Hollingsworth without his consent. Hollingsworth appealed to the U.S. District Court for the Eastern District of Louisiana, arguing that he had the right to a jury trial. The district court affirmed the judgment and sentence entered by the magistrate judge. Hollingsworth then appealed to the U.S. Court of Appeals for the Fifth Circuit, arguing that he had a constitutional right to trial before an Article III judge. The Fifth Circuit affirmed, holding that there is no right to trial before an Article III judge for a petty offense committed on a federal enclave. The court reasoned that Article I, Section 8, Clause 17 of the United States Constitution provides Congress with extensive regulatory authority over land acquired for federal use and that this authority permits Congress to endow magistrate judges with the power to try, at a minimum, petty offenses committed there.

Judge Higginbotham's concurrence noted the importance of the fact that a petty offense was at issue.

Judge Higginson's dissent focused on the incremental reassignment of federal judicial power away from Article III judges.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-31265-CR0.pdf.

Panel: Circuit Judges Higginbotham, Clement, and Higginson.

Argument Date: 12/2/2014

Date of Issued Opinion: 4/14/2015

Docket Number: No. 13-31265

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: John Rivera, U.S. Attorney's Office, for Plaintiff-Appellee United States; Jordan Mark Siverd, Federal Public Defender's Office for the Eastern District of Louisiana, for Defendant-Appellant Hollingsworth.

Author of Opinion: Judge Clement (Judge Higginbotham concurring and Judge Higginson dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/15/2015 09:31 PM     5th Circuit     Comments (0)  

April 8, 2015
  Crane v. Johnson - Fifth Circuit
Headline: Fifth Circuit Dismisses Challenge to "Deferred Action for Childhood Arrivals" Immigration Policy.

Area of Law: Immigration; Federal Subject Matter Jurisdiction.

Issue Presented: Whether the plaintiffs - several immigration officers and the State of Mississippi - alleged injuries that were concrete and particularized enough to establish standing under Article III of the United States Constitution.

Brief Summary: Several Immigration and Customs Enforcement agents and deportation officers ("Agents") and the State of Mississippi filed this suit against the Secretary of the Department of Homeland Security and the directors of divisions within that agency in order to challenge a 2012 DHS directive setting forth a program of "Deferred Action for Childhood Arrivals." The Agents alleged that exercising deferred action violates federal law because the law requires them to detain all unauthorized aliens for the purpose of placing the aliens in removal proceedings. The State of Mississippi alleged that the deferred action has caused additional aliens to remain in the state and thereby causes the state to spend money on providing social services. The U.S. District Court for the Northern District of Texas dismissed Plaintiffs' claims for lack of subject matter jurisdiction. The U.S. Court of Appeals for the Fifth Circuit concluded that neither the Agents nor the State of Mississippi had demonstrated the concrete and particularized injury required to give them standing to maintain the suit, and it accordingly affirmed the district court's dismissal.

Extended Summary: Plaintiffs are several Immigration and Customs Enforcement agents and deportation officers ("Agents") and the State of Mississippi. They filed suit against the Secretary of the Department of Homeland Security and the directors of divisions within that agency, in their official capacities, challenging DHS's 2012 directive providing for the deferral of removal proceedings against certain categories of aliens brought to the United States as children. The program is known as "Deferred Action for Childhood Arrivals," or DACA. The Agents alleged that exercising deferred action violates federal law because the law requires them to detain all unauthorized aliens for the purpose of placing the aliens in removal proceedings. The State of Mississippi alleged that the deferred action has caused additional aliens to remain in the state and thereby causes the state to spend money on providing social services.

Defendants filed a motion to dismiss asserting that Plaintiffs had not alleged an adequate injury-in-fact that can be redressed by a favorable ruling and therefore did not have standing to bring the suit. The Agents asserted three distinct injuries: (1) a violation of their oaths of office; (2) the burden of compliance with the Directive; and (3) "being compelled to violate a federal statute . . ., on pain of adverse employment action if they do not." The district court found that violating one's oath is not a sufficient injury-in-fact to confer standing, nor is the burden of complying with the Directive. However, the district court found that the threat of an adverse employment action if the Agents refuse to follow the Directive is a sufficient injury to support standing. Mississippi asserted that the cost to the state in providing services to DACA beneficiaries is an adequate injury to support standing. The district court held that Mississippi's allegation of a fiscal burden was too speculative because the only support the state provided for this burden was a 2006 report which estimated the annual cost of immigration six years before the DACA program was instituted. There was no concrete evidence that Mississippi's costs had increased or will increase as a result of DACA.

The district court ultimately held that the Agents had not pursued their remedies under the Civil Service Reform Act, and, thus, the district court lacked subject matter jurisdiction over their claims.

On appeal, the U.S. Court of Appeals for the Fifth Circuit agreed with the district court that Mississippi had failed to allege a sufficiently concrete and particularized injury that would give it standing to challenge DACA. The Fifth Circuit also agreed with the district court and held that the first two injuries listed by the Agents had failed to allege a sufficiently concrete and particularized injury that would give standing to challenge DACA.

However, with regard to the third injury asserted by the Agents, the Fifth Circuit disagreed with the district court that these allegations were sufficient to support the Agents' claims of injury-in-fact. The unlikelihood of an agency sanction against an agent for exercising discretion expressly granted under the directives, together with the fact that no sanctions or warning of sanctions had been issued for that exercise, persuaded the Fifth Circuit that the Agents are not under a "certainly impending" threat of an adverse personnel action that is sufficiently concrete and particularized to qualify as an injury-in-fact that gives the Agents standing. As such, the Fifth Circuit affirmed the district court's dismissal of all of Plaintiffs' claims.

Judge Owen wrote in concurrence only to note that in order to establish standing with respect to some claims, it is not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur.

Note that a separate challenge to a more recently announced expansion of deferred action is also pending before the Fifth Circuit, but the appeal summarized here concerned only the 2012 DACA program.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-10049-CV0.pdf.

Panel: Circuit Judges King, Davis, and Owen

Argument Date: 2/3/2015

Date of Issued Opinion: 4/7/2015

Docket Number: No. 14-10049

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Kris Kobach, Immigration Reform Law Institute, for Plaintiffs-Appellants Cross-Appellees Crane, Engle, Carroll, Diaz, Garza, Luciano, Rebstock, Silva, Martin, Doebler, and the State of Mississippi. Jeffrey Clair, U.S. Department of Justice, for Defendants-Appellees Cross-Appellants Johnson, Secretary, Department of Homeland Security; Sandweg, in His Official Capacity as Director of Immigration and Customs Enforcement; Scialabba, in Her Official Capacity as Acting Director of United States Citizenship and Immigration Services.

Author of Opinion: Judge Davis (Judge Owen concurring)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/08/2015 09:26 PM     5th Circuit     Comments (0)  

March 12, 2015
  United States v. Kaluza - Fifth Circuit
Headline: Fifth Circuit Affirms Dismissal of Some Manslaughter Charges Against BP Employees Stemming from the Deepwater Horizon Disaster.

Area of Law: criminal law; maritime law.

Issue Presented: Whether under 18 U.S.C. § 1115 (seaman's manslaughter) "[e]very . . . other person employed on any . . . vessel" includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel."

Brief Summary: On April 20, 2010, a blowout of oil, natural gas, and mud occurred during deepwater drilling operations at the Macondo well, located on the Outer Continental Shelf in the waters of the Gulf of Mexico. At the time of the blowout, the Deepwater Horizon, a drilling rig chartered by BP plc. (BP) from Transocean Ltd. (Transocean), was attached to the Macondo well. Eleven men died from the resulting explosions and fires on the Deepwater Horizon. Robert Kaluza and Donald Vidrine (Defendants) were "well site leaders," the highest-ranking BP employees working on the rig, and their duties were to direct the drill crew and contractors in their work while maintaining regular contact with the BP engineers on shore. The Defendants were indicted by a federal grand jury in the U.S. District Court for the Eastern District of Louisiana on twenty-three counts, including eleven counts of seaman's manslaughter in violation of 18 U.S.C. § 1115 (Counts 12-22). That statute imposes liability on "[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel" who causes a death through misconduct or negligence. The district court granted Defendants' motion to dismiss counts 12-22 for failure to charge an offense because the Defendants did not fit within the category of persons potentially liable under the statute. The government appealed to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit agreed that the Defendants did not fall within the meaning of the phrase "[e]very . . . other person employed on any . . . vessel," and it accordingly affirmed the district court.

Extended Summary: On April 20, 2010, a blowout of oil, natural gas, and mud occurred during deepwater drilling operations at the Macondo well, located on the Outer Continental Shelf in the waters of the Gulf of Mexico. At the time of the blowout, the Deepwater Horizon, a drilling rig chartered by BP plc. (BP) from Transocean Ltd. (Transocean), was attached to the Macondo well. Eleven men died from the resulting explosions and fires on the Deepwater Horizon. Robert Kaluza and Donald Vidrine (Defendants) were "well site leaders," the highest-ranking BP employees working on the rig, and their duties were to direct the drill crew and contractors in their work while maintaining regular contact with the BP engineers on shore. The Defendants were indicted by a federal grand jury in the U.S. District Court for the Eastern District of Louisiana on twenty-three counts: eleven counts of involuntary manslaughter in violation of 18 U.S.C. § 1112 (Counts 1-11); eleven counts of seaman's manslaughter in violation of 18 U.S.C. § 1115 (Counts 12-22); and one count of negligent discharge under the Clean Water Act in violation of 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3) (Count 23).

18 U.S.C. § 1115, seaman's manslaughter, holds liable "[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel" who causes a death through misconduct or negligence. The Defendants filed a motion to dismiss counts 12-22 for failure to charge an offense because neither defendant fell within the meaning of "[e]very . . . other person employed on any . . . vessel." The district court granted the Defendants' motion. It concluded that the seaman's manslaughter statute was ambiguous and applied the principle of ejusdem generis to define the key phrase. Ejusdem generis instructs that where general words follow an enumeration of specific terms, the general words are read to apply only to other items like those specifically enumerated. The district court concluded that in the context of the phrase, the terms "captain," "engineer," and "pilot" suggested a class of persons dealing with the operation and navigation of the vessel. Thus "every . . . other person" includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel." Since Defendants were not such persons, they did not fall within the ambit of the statute. The government appealed this determination to the U.S. Court of Appeals for the Fifth Circuit. (The other criminal counts were not at issue in the appeal.)

The Fifth Circuit affirmed the district court's dismissal of counts 12-22. The Court held that the plain text of the seaman's manslaughter statute is ambiguous, and, based on the canons of statutory interpretation, the text and context of § 1115, legislative history and purpose, case law, and the doctrine of lenity, the statute includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel." The Fifth Circuit held that the Defendants were engineers solely responsible for drilling and were not persons responsible for the "marine operations, maintenance, or navigation of the vessel." Therefore the Defendants were not included in "[e]very . . . other person employed on any . . . vessel."

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-30122-CR0.pdf.

Panel: Circuit Judges Higginbotham, Jones, and Prado

Argument Date: 7/8/2014

Date of Issued Opinion: 3/11/2015

Docket Number: No. 14-30122

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Sangita Katikineni Rao, Department of Justice, for Plaintiff-Appellant United States of America; Shaun G. Clarke, Smyser Kaplan & Veselka, L.L.P., for Defendant-Appellee Kaluza; Robert N. Habans, Jr., Habans & Carriere, for Defendant-Appellee Vidrine.

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 03/12/2015 10:31 PM     5th Circuit     Comments (0)  

January 31, 2015
  Felder's Collision Parts, Inc. v. All Star Advertising Agency, Inc. - Fifth Circuit
Headline: Fifth Circuit Affirms Dismissal of Antitrust Suit Targeting GM's Parts Rebates.

Area of Law: Antitrust.

Issue Presented: Whether, in a predatory-pricing antitrust suit, the effect of a manufacturer's rebate to its dealer is considered in deciding whether the dealer is selling its product at a price below its average variable cost.

Brief Summary: Felder's Collision Parts, a dealer of aftermarket General Motors ("GM") parts, sued GM and All Star, a dealer of original GM parts, for violating state and federal antitrust laws by engaging in predatory pricing. The U.S. District Court for the Middle District of Louisiana dismissed the antitrust claims because Felder's failed to plead facts indicating All Star was selling GM parts for less than All Star's average variable cost. Although at the point of sale All Star sold the parts for a price below its average variable cost, GM offered rebates following sale that, if considered, effectively decreased the average variable cost below the sales price. The Fifth Circuit affirmed the dismissal, reasoning that "[t]he price versus cost comparison focuses on whether the money flowing in for a particular transaction exceeds the money flowing out." In this case, when the rebate was considered, the money flowing in exceeded the amount flowing out; therefore, Felder's did not make a prima facie showing of price predation and the district court's dismissal of Felder's antitrust claims was affirmed.

Extended Summary: This case concerns competitors in the automobile parts market. There are two types of automobile parts: aftermarket parts, which are produced by a supplier other than the vehicle manufacturer, and original equipment manufacturer ("OEM") parts, which are produced by the vehicle manufacturer. Historically, an aftermarket part has been less expensive than the equivalent OEM part. In order to better compete with dealers of aftermarket parts for GM vehicles, GM began a "Bump the Competition" program. Under this program, when there is a matching aftermarket part, GM allows its dealers to sell the OEM part for 33% less than the prevailing market price for the aftermarket equivalent. Due to the size of this discount, OEM parts dealers, such as All Star, sold parts below the price they paid to GM for the part. After the sale, GM rebated the dealer the difference between the sales price and the price the dealer paid GM for the part. Additionally, GM paid the dealer a 14% profit. Felder's Collision Parts, an aftermarket parts dealer, brought suit under state and federal antitrust laws alleging that the sale of parts by All Star and other GM OEM dealers below the price paid to GM constituted predatory pricing.

To make out a prima facie case of price predation in the Fifth Circuit, one must allege that a predator is selling a good or service below the average variable cost of that good or service. Average variable cost is the sum cost of variable inputs such as manufacturing materials, labor, and electricity divided by the total amount of output. While calculating average variable cost is often arduous, in this case the average variable cost was simply the price the dealer paid to GM for the part. If GM's rebates were not considered, All Star sold parts to consumers below the amount they paid to GM, which would satisfy one essential element of predatory pricing. However, if GM's rebates were considered, All Star sold parts to consumers above the effective price they paid to GM, which would quash a price predation claim.

The Fifth Circuit concluded that GM's rebates should be included within the predatory pricing analysis because a time lapse between sale and rebate did not modify All Star's profitability. Contrary to Felder's "freeze frame" theory, the court did not agree that price and cost should be fixed at the time of sale because such a theory disregarded the economic reality that All Star's sales under Bump the Competition were profitable. The relevant inquiry for the price-versus-cost comparison is whether the alleged predator's sales are profitable, which generally means money flowing in exceeds money flowing out. Time lapse between a dealer's sale and a manufacturer's rebate for that sale does not exclude the rebate from the profitability calculus. Because All Star was selling OEM parts for more than they paid for them when the rebates were considered, these sales could not constitute predatory pricing. Therefore, the district court's dismissal was affirmed. It is important to note that Felder's did not allege GM was selling to its dealers below its average variable cost; instead, its complaint only alleged GM's dealers were selling to consumers below their average variable cost.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/14/14-30410-CV0.pdf.

Panel: Circuit Judges King, Jolly, and Costa

Argument Date: 12/3/2014

Date of Issued Opinion: 1/27/2015

Docket Number: No. 14-30410

Decided: Affirmed

Case Alert Author: Matthew Cameron

Counsel: James M. Garner, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., for Plaintiff-Appellant Felder's Collision Parts, Inc.; Michael W. McKay, Stone, Pigman, Walter & Wittman, for Defendant-Appellee All Star Advertising Agency, Inc.; Mark Aaron Cunningham, Jones Walker LLP, for Defendant-Appellee General Motors, L.L.C.

Author of Opinion: Judge Costa

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 01/31/2015 05:42 PM     5th Circuit     Comments (0)  

January 6, 2015
  Wooten v. McDonald Transit Associates, Inc. - Fifth Circuit
Headline: Fifth Circuit Bolsters Protections for Defaulting Defendants.

Area of Law: Federal Rules of Civil Procedure; Age Discrimination in Employment Act.

Issue Presented: Whether evidence adduced at a default-judgment "prove-up" hearing can cure a deficient complaint.

Brief Summary: Wooten filed suit against McDonald Transit Associates, Inc. (McDonald) under the Age Discrimination in Employment Act (ADEA) alleging discrimination and retaliation. McDonald never answered or defended the suit. The U.S. District Court for the Northern District of Texas entered default against McDonald, and, after holding a hearing on damages at which Wooten provided live testimony that elaborated on his allegations, the district court entered default judgment for Wooten. McDonald later filed a motion to set aside the default judgment, which the district court denied. McDonald appealed to the U.S. Court of Appeals for the Fifth Circuit, which held that evidence adduced at a default-judgment "prove-up" hearing cannot cure a deficient complaint. The Fifth Circuit vacated the judgment and remanded with instructions to dismiss the complaint with leave to amend.

Extended Summary: Wooten filed suit against McDonald Transit Associates, Inc. (McDonald) under the Age Discrimination in Employment Act (ADEA) alleging discrimination and retaliation. Wooten's complaint alleged the following facts: Wooten worked for McDonald from 1999 to 2011 as a Class B Mechanic; he made a claim to the Equal Employment Opportunity Commission (EEOC) for age discrimination; after the claim was made McDonald, in violation of the ADEA, retaliated against Wooten and created a hostile work environment, until such time that Plaintiff was constructively discharged; and the unlawful conduct caused Wooten harm, including damages in the form of lost wages and benefits, mental anguish, and non-economic damages. McDonald never answered or defended the suit.

The U.S. District Court for the Northern District of Texas held a hearing, which the court expressly designated "a hearing to prove up damages for a default judgment." Wooten elaborated on his factual allegations. He testified that he was fifty-four years old at the time he made his claim to the EEOC; he explained that during his tenure he had been promoted from the position of Class B Mechanic to the position of Shop Foreman; he described his retaliation claim in greater detail: he stated that he was demoted from Shop Foreman, lowering his pay by $2 an hour; he was given menial work, and his hours were changed; he was denied opportunities for additional job-related certification; he stated that he was never reprimanded. The district court entered default judgment for Wooten. McDonald later filed a motion to set aside the default judgment, which the district court denied.

McDonald appealed to the U.S. Court of Appeals for the Fifth Circuit. McDonald asserted that Wooten's complaint insufficiently alleged the essential elements of his prima facie claim under the ADEA. The Fifth Circuit concluded that Wooten's complaint was impermissibly bare, but if viewed in combination with his live testimony, it provided a sufficient basis to support the default judgment. Therefore, the Fifth Circuit had to address the question on which they reserved judgment in Nishimatsu Construction Co., Ltd. v. Houston National Bank (5th Cir. 1976): May defective pleadings be corrected by proof taken at a default-judgment hearing?

The Fifth Circuit held, based on the Federal Rules of Civil Procedure, precedent, and policy and practical considerations, that evidence adduced at a default-judgment "prove-up" hearing cannot cure a deficient complaint. Rather, a district court in these circumstances has three options: (1) dismiss the complaint sua sponte without prejudice, allowing the plaintiff to amend and refile, (2) grant leave to amend the complaint to include the facts presented at the hearing, or (3) treat the hearing evidence as constituting a de facto amendment to the complaint and then allow the defendant to answer the complaint as amended.

Therefore, while the Fifth Circuit did not condone McDonald's conduct in the district court, the district court abused its discretion in entering default judgment against McDonald. The Fifth Circuit vacated the judgment and remanded with instructions to dismiss the complaint with leave to amend.

Judge Wiener wrote a dissent stating that the holding will eviscerate the role of default judgment. When district courts are asked to grant default judgments based on pleadings that are anything short of absolute perfection, they will almost certainly refuse to do so without first affording the recalcitrant defendants yet another bite at the apple.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-11035-CV0.pdf.

Panel: Circuit Judges Smith, Wiener, and Prado

Argument Date: 6/3/2014

Date of Issued Opinion: 1/2/2015

Docket Number: No. 13-11035

Decided: Vacated and remanded

Case Alert Author: Kirsty Davis

Counsel: Joseph Craig Johnston, Johnston & Miller, for Plaintiff-Appellee Wooten; David B. Dowell, Cantey Hanger, L.L.P., for Defendant-Appellant McDonald Transit Associates, Inc.

Author of Opinion: Judge Prado (Dissent by Judge Wiener)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 01/06/2015 11:24 AM     5th Circuit     Comments (0)  

October 15, 2014
  Veasey v. Perry - Fifth Circuit
Headline: Fifth Circuit Reinstates Texas Voter ID Law for Upcoming Election.

Area of Law: Election law.

Issue Presented: Whether, in light of the importance of maintaining the status quo on the eve of an election, the District Court's judgment holding the Texas voter identification law unconstitutional should be stayed pending appeal.

Brief Summary: The U.S. District Court for the Southern District of Texas enjoined Texas's voter identification law on October 11, nine days before early voting begins and twenty-four days before Election Day. The district court's decision was based on its determination that the ID requirements, which had been enacted by the state legislature in 2011, abridged the right to vote, discriminated against minority voters, and amounted to an unconstitutional poll tax. The State of Texas filed an emergency motion for stay pending appeal in the U.S. Court of Appeals for the Fifth Circuit. Based primarily on the extremely fast-approaching election date, the Fifth Circuit stayed the district court's judgment pending appeal. As a result, the challenged requirements will apply in the upcoming November 2014 election, unless the Supreme Court intervenes to vacate the Fifth Circuit's stay.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/14/14-41127-CV0.pdf.

Panel: Circuit Judges Clement, Haynes, and Costa

Argument Date: N/A

Date of Issued Opinion: 10/14/2014

Docket Number: No. 14-41127

Decided: The State's motion for a stay of the district court's judgment pending appeal is granted.

Case Alert Author: Kirsty Davis

Counsel: Chad Dunn, Brazil & Dunn, for Plaintiffs-Appellees Veasey, Hamilton, Deleon, Carrier, Burns, Montez, Pope, Ortiz, Ozias, League of United Latin American Citizens, Mellor-Crumley, and Dallas County, TX; Anna Baldwin, U.S. Dept. of Justice, for Plaintiff-Appellee United States of America; Leah Aden, NAACP Legal Defense & Educational Fund, Inc., for Intervenor Plaintiffs-Appellees Imani Clark, and Texas League of Young Voters Education Fund; Rolando Rios for Intervenor Plaintiff-Appellee Texas Association of Hispanic County Judges and County Commissioners; Preston Henrichson for Intervenor Plaintiff-Appellee Mexican American Legislative Caucus-Texas House of Representatives; Vishal Agraharkar, New York University, Brennan Center for Justice, for Plaintiff-Appellee Texas State Conference of NAACP Branches; Jose Garza for Plaintiff-Appellees Espinosa, Estrada, La Union Del Pueblo Entero, Incorporated, Martinez Lara, Medez, and Taylor; Jonathan Mitchell, Solicitor General, for Defendant-Appellants Perry, in his Official Capacity as Governor of Texas, Berry, in her Official capacity as Texas Secretary of State, the State of Texas, and Mcgraw, in his Official Capacity as Director of the Texas Dept. of Public Safety.

Author of Opinion: Judge Clement (Judge Costa concurring in the judgment)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 10/15/2014 09:35 PM     5th Circuit     Comments (0)  

September 26, 2014
  McBride v. Estis Well Service, L.L.C. - Fifth Circuit
Headline: Fifth Circuit Rules That Punitive Damages Are Not Available to Seamen or Their Survivors Under General Maritime Law or the Jones Act.

Area of Law: Maritime Law; Jones Act.

Issue Presented: Whether punitive damages are available under the Jones Act or general maritime law to injured seamen or their survivors.

Brief Summary: These consolidated cases arose out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, Louisiana. The truck toppled over, and one crewmember was killed and three others were injured. At the time of the incident, Estis Well Service, L.L.C. (Estis) owned and operated Rig 23 and employed the Plaintiff crewmembers. The Plaintiffs filed suit in the U.S. District Court for the Western District of Louisiana against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as punitive damages. Estis moved to dismiss the claims for punitive damages, arguing that punitive damages are not available as a matter of law where liability is based on unseaworthiness or Jones Act negligence. The District Court granted the motion, entered judgment dismissing all claims for punitive damages, and granted Plaintiffs' motion to certify the judgment for immediate appeal to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit panel concluded that punitive damages were available. The Fifth Circuit then granted rehearing en banc and concluded that the Supreme Court's decision in Miles v. Apex Marine Corp., which holds that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness, is controlling. Because punitive damages are non-pecuniary losses, punitive damages may not be recovered in this case.

Extended Summary: These consolidated cases arose out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a navigable waterway in Louisiana. The truck toppled over, and one crewmember was fatally pinned between the derrick and mud tank, and three others suffered injuries. At the time of the incident, Estis Well Service, L.L.C. (Estis) owned and operated Rig 23 and employed the Plaintiff crewmembers.

The Plaintiffs filed suit in the U.S. District Court for the Western District of Louisiana against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as punitive damages under both claims. Estis moved to dismiss the claims for punitive damages, arguing that punitive damages are not available as a matter of law where liability is based on unseaworthiness or Jones Act negligence. The District Court granted the motion, entered judgment dismissing all claims for punitive damages, and granted Plaintiffs' motion to certify the judgment for immediate appeal to the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit panel concluded that the Supreme Court's recent opinion in Atlantic Sounding Co., Inc. v. Townsend (2009) controlled this case and that the remedy of punitive damages are available to injured seamen and the survivors of deceased seamen. The Fifth Circuit granted rehearing en banc and, on rehearing, affirmed the District Court. The Fifth Circuit concluded that the Supreme Court's decision in Miles v. Apex Marine Corp. (1990), which holds that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness, is controlling. The Supreme Court, in Townsend, did not overrule Miles. Rather, it took pains to distinguish maintenance and cure cases from unseaworthiness under general maritime law and negligence under the Jones Act, and it confirmed that the reasoning of Miles remains sound. Because punitive damages are non-pecuniary losses, punitive damages may not be recovered in this case.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/12/12-30714-CV2.pdf.

Panel: En Banc

Argument Date: 5/14/2014

Date of Issued Opinion: 9/25/2014

Docket Number: No. 12-30714

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Brian Colomb, Domengeaux, Wright, Roy & Edwards, for Plaintiff-Appellant McBride; Elwood Stevens, Domengeaux, Wright, Roy & Edwards, for Plaintiff-Appellant Suire; Nicholas Blanda, Anderson & Dozier, for Plaintiff-Appellant Touchet; Alan Breaud, Breaud & Meyers, A.P.L.C., for Defendant-Appellee Estis Well Service, L.L.C.

Author of Opinion: Circuit Judge Davis (Concurrence by Circuit Judge Clement, Concurrence by Circuit Judge Haynes, Dissent by Circuit Judge Higginson, Dissent by Circuit Judge Graves)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/26/2014 09:03 PM     5th Circuit     Comments (0)  

September 10, 2014
  United States v. Howard - Fifth Circuit
Headline: Fifth Circuit Provides Guidance on Meaning of Federal Statute Prohibiting Attempts to Coerce Children into Sex.

Area of Law: Criminal law of attempt; 18 U.S.C. § 2422(b).

Issue Presented: Whether a person can commit the offense of attempting to induce a child to engage in sexual activity under 18 U.S.C. § 2422(b) if the person does not make travel plans to see the child; whether 18 U.S.C. § 2422(b) is unconstitutionally vague and overbroad.

Brief Summary: As part of a sting operation, a government agent impersonated a mother offering up her two minor daughters for sex. Defendant-Appellant Jeffrey Howard sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. The government agent tried to get Howard to commit to book a flight and make other travel plans, but Howard ultimately refused. Three months later the police arrested Howard. Howard was convicted by bench trial in the U.S. District Court for the Southern District of Texas of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). Howard was sentenced to 120-months imprisonment, the mandatory minimum. Howard appealed to the U.S. Court of Appeals for the Fifth Circuit challenging the sufficiency of the evidence and the constitutionality of the statute. The Fifth Circuit affirmed Howard's conviction and sentence and held 18 U.S.C. § 2422(b) constitutional.

Extended Summary: As part of a sting operation, a government agent impersonated a mother in Corpus Christi, Texas, offering up her two minor daughters for sex. Defendant-Appellant Howard, residing in California, unemployed and bed ridden from a back injury, sent the agent sexually explicit photographs and asked that she show the photographs to the girls. He also suggested that the agent procure birth control for and perform sex acts on her daughters to get them ready for him. But Howard did not make travel arrangements to Corpus Christi, Texas, where the fictional mother and her two daughters lived. Further, the government agent tried to get Howard to commit to book a flight and make other travel plans, instructing Howard to "take it or leave it," and Howard responded, "okay, I'll leave it." Three months later the police arrested Howard in California. Howard was convicted by bench trial in the U.S. District Court for the Southern District of Texas of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). At the close of the government's case in chief, Howard moved for a directed verdict. Howard argued the government did not prove that he took a "substantial step" because his conduct amounted to mere preparation. The district court orally rejected Howard's motion for a directed verdict. Howard was sentenced to 120-months imprisonment, the mandatory minimum. Howard appealed to the U.S. Court of Appeals for the Fifth Circuit.

Howard sought reversal of his criminal conviction on two grounds. First, Howard argued there was insufficient evidence to support his conviction for violation of § 2422(b) because he did not take a "substantial step" toward enticing a minor to have illegal sex. Second, Howard contended the "attempt" provision of § 2422(b) is unconstitutionally vague and overbroad because it criminalizes free speech.

Sufficiency of the Evidence: The "substantial step" approach asks whether a person purposefully does or omits to do anything that is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Acts that are merely preparatory are not enough. To determine whether Howard's conduct crossed the line between preparation and attempt, one must define the conduct that § 2422(b) criminalizes. Section 2422(b) does not require that the sexual contact occur but only that the defendant sought to persuade the minor to engage in that contact; it criminalizes an intentional attempt to achieve a mental state - a minor's assent - regardless of the accused's intentions vis-à-vis the actual consummation of sexual activities with the minor. Howard argued that his actions were mere preparation because he made no firm travel plans. The Fifth Circuit had already held that travel to a meeting place is sufficient to establish attempt, but it had never held that travel or plans to travel are necessary. The Fifth Circuit and other circuits' case law supports the rule that grooming behavior plus other acts strongly corroborative of intent to entice illegal sex - such as detailed discussions to arrange a meeting with the minor victim - can suffice to establish a substantial step under § 2422(b). The Fifth Circuit disagreed with the district court's conclusion that Howard took a substantial step toward enticing a minor to engage in illegal sex simply by sending a sexually explicit photograph of himself and asking that it be shown to the girls. The Fifth Circuit also rejected Howard's argument that travel or a definite plan to travel is required to sustain a conviction under § 2422(b). However, the Fifth Circuit held that that a reasonable trier of fact could conclude beyond a reasonable doubt that Howard's conduct approached the line between despicable lawful conduct and criminal attempt - through his sexually explicit conversations, transmission of sexual photographs, and discussion of specific travel details - and crossed it when he instructed the undercover police officer to perform sex acts on and procure birth control for the girls to get them ready for him. The finding of criminal attempt in this case was a close call, and the Fifth Circuit expressed its hope that this case represents the outer bounds of cases the government chooses to prosecute under § 2422(b). The Fifth Circuit affirmed Howard's conviction and sentence.

Constitutional Challenge: Howard challenged the constitutionality of § 2422(b) on two grounds. He asserted (1) that the term "attempt" is unconstitutionally vague and (2) that § 2422(b) is unconstitutionally overbroad because it criminalizes protected speech in violation of the First Amendment. The government argued § 2422(b) is not unconstitutionally vague or overbroad, noting that the Second, Third, Sixth, Ninth, Tenth, and Eleventh Circuits have analyzed the statute and rejected similar constitutional challenges. The Fifth Circuit agreed with the government and held § 2422(b) constitutional.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/13/13-40767-CR0.pdf

Panel: Circuit Judges Higginbotham, Jones, and Prado

Argument Date: 7/9/2014

Date of Issued Opinion: 9/9/2014

Docket Number: No. 13-40767

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Eileen K. Wilson, AUSA, for Plaintiff-Appellee United States; Simon Brian Purnell, for Defendant-Appellant Howard.

Author of Opinion: Judge Prado

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/10/2014 09:28 PM     5th Circuit     Comments (0)  

July 29, 2014
  Department of Texas, Veterans of Foreign Wars v. Texas Lottery Commission - Fifth Circuit
Headline: Fifth Circuit Strikes Down Texas Law Prohibiting Charities from Using Bingo Proceeds to Fund Political Advocacy.

Area of Law: Texas Bingo Enabling Act; First Amendment.

Issue Presented: Whether the political advocacy restrictions contained in the Texas Bingo Enabling Act violate the First Amendment.

Brief Summary: The issue presented in this appeal is the constitutionality of political advocacy restrictions contained in the Texas Bingo Enabling Act ("the Bingo Act"). The Bingo Act allows charitable organizations to raise money by holding bingo games on the condition that the money is used only for the organizations' charitable purpose and not for political advocacy. A group of charities filed suit challenging these restrictions in the U.S. District Court for the Western District of Texas, arguing that the restrictions violated their speech rights under the First Amendment. The district court granted summary judgment in favor of the challengers and issued a permanent injunction preventing enforcement of the speech restrictions. A panel of the U.S. Court of Appeals for the Fifth Circuit reversed the district court, but the panel decision was vacated when the Fifth Circuit decided to rehear the case en banc. The en banc Fifth Circuit affirmed the district court's summary judgment and permanent injunction.

Extended Summary: In 2010, Plaintiffs-Appellees, who are a host of nonprofit organizations licensed to conduct bingo in Texas ("the Charities"), brought suit under 42 U.S.C. § 1983 against the commissioners and two executive officers of the Texas Lottery Commission, the state agency responsible for bingo licensing and regulation ("the Commission"). The Texas Bingo Enabling Act ("the Bingo Act") allows charitable organizations to raise money by holding bingo games on the condition that the money is used only for the organizations' charitable purpose and not for political advocacy. The Charities alleged that two of the political advocacy restrictions, Sections 2001.456(2) - (3), violated their right to freedom of speech.

Sections 2001.456(2) - (3) state that:
A licensed authorized organization may not use the net proceeds from bingo directly or indirectly to: ... (2) support or oppose a measure submitted to a vote of the people; or (3) influence or attempt to influence legislation.

The First Amendment challenge was twofold: First, the Charities claimed that Sections 2001.456(2) - (3) are facially unconstitutional because they are a direct abridgement of speech with no compelling or substantial justifying interest. Second, they claimed the law unconstitutionally discriminates between the Charities and similarly situated businesses, such as racetracks, which are not prohibited from using their revenue for political purposes.

The U.S. District Court for the Western District of Texas granted summary judgment in favor of the Charities, permanently enjoining the Commission from enforcing the invalid provisions. The Commission appealed and a unanimous Fifth Circuit panel reversed the district court's summary judgment in favor of the Charities and its permanent injunction preventing enforcement of the challenged statutory provisions. After panel rehearing, a panel majority issued a revised opinion that again reversed the district court's judgment. Thereafter, the Fifth Circuit granted en banc rehearing.

The Fifth Circuit en banc held that (1) the Bingo Act creates a regulatory regime that grants the Charities a benefit - in the form of a license - to conduct bingo games, rather than a government subsidy; (2) the challenged provisions constitute facial restrictions on the Charities' political speech, and therefore strict scrutiny applies; and (3) the political advocacy restrictions in the Bingo Act do not withstand strict scrutiny. The Commission failed to articulate a compelling interest justifying the challenged provisions, but even if the interests raised by the Commission were compelling, the restrictions are not narrowly tailored. Consequently, the provisions at issue are facially invalid under the First Amendment.

Judge Dennis dissented on the grounds that Supreme Court precedent does not permit strict or heightened scrutiny. The charitable bingo program's limitation on the use of bingo proceeds for lobbying and other political speech, which the legislature has decided not to promote, does not "suppress" that speech and therefore should not trigger strict or heightened scrutiny under the First Amendment.

Judge Graves's dissent joined Judge Dennis's but also argued that the Bingo Act's restrictions on the use of bingo proceeds for political advocacy are permissible conditions on a government subsidy and do not operate to penalize speech.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...ub/11/11-50932-CV2.pdf.

Panel: En banc

Argument Date: 1/22/2014

Date of Issued Opinion: 7/28/2014

Docket Number: No. 11-50932

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Anatole Robert Barnstone for Plaintiffs-Appellees Department of Texas, Veterans of Foreign Wars of the United States; Amvets Department of Texas, Incorporated; Amvets Post 52, Incorporated; Amvets Post 52, Auxiliary, Incorporated; The Great Council of Texas, Improved Order of Redmen; Redmen War Eagle Tribe No. 17; Redmen Tribe No. 21 Geronimo; Redmen Ramona Council No. 5; The Institute for Disability Access, Incorporated, Doing Business as Adapt of Texas; Temple Elks Lodge No. 138, Benevolent and Protective Order of Elks of the United States of America, Incorporated; Bryan Lodge No. 859, Benevolent and Protective Order of Elks of the United States of America, Incorporated; Austin Lodge No. 201, Benevolent and Protective Order of Elks of the United States of America, Incorporated; and Anna Fire and Rescue, Incorporated. Arthur Cleveland D'Andrea for Defendants-Appellants Texas Lottery Commission; Gary Grief, Executive Director in his Official Capacity; Sandra K. Joseph, Director of Charitable Bingo in her Official Capacity; Mary Ann Williamson, Commissioner in her Official Capacity; Unknown Commissioner in Official Capacity; and J. Winston Krause, Commissioner in his Official Capacity.

Author of Opinion: Chief Judge Stewart (dissents by Judge Dennis and Judge Graves)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/29/2014 12:20 PM     5th Circuit     Comments (0)  

July 15, 2014
  Fisher v. University of Texas at Austin - Fifth Circuit
Headline: Fifth Circuit Upholds Race-Conscious Admissions Policy at University of Texas.

Area of Law: Constitutional Law: Equal Protection.

Issue Presented: Whether the University of Texas violates the Equal Protection Clause by considering applicants' race as one part of its admissions plan.

Brief Summary: The University of Texas at Austin admits most of its incoming class through the state's Top Ten Percent Plan (which considers applicants' class rank in high school) and the remainder of its class through a more holistic process that includes consideration of race as one component. The university contends that some consideration of race is necessary in order to achieve a critical mass of minority students. In a prior round of litigation, the U.S. Court of Appeals for the Fifth Circuit upheld the admissions program against a constitutional challenge brought by a white student who was denied admission. Last year, the Supreme Court vacated and remanded, concluding that the Fifth Circuit had not properly applied the "strict scrutiny" standard that applies to the government's use of racial classifications. In particular, the Supreme Court faulted the Fifth Circuit for showing excessive deference to the university's claim that consideration of race was necessary to achieve the goal of a diverse student body. On reconsideration, the Fifth Circuit has reaffirmed its prior ruling. Having scrutinized the university's plan again, the Fifth Circuit concluded that the university's consideration of race is narrowly tailored to achieving the compelling goal of diversity and that race-neutral alternatives would not suffice. The university's admissions plan is therefore lawful.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub\09/09-50822-CV2.pdf.

Panel: Circuit Judges King, Higginbotham, and Garza.

Argument Date: 11/13/2013

Date of Issued Opinion: 7/15/2014

Docket Number: No. 09-50822

Decided: Affirmed

Counsel: Bert Walter Rein, Wiley Rein, L.L.P., for Plaintiff-Appellant Fisher; Gregory George Garre, Latham & Watkins, L.L.P., for Defendant-Appellee University of Texas at Austin.

Author of Opinion: Judge Higginbotham (Judge Garza dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/15/2014 04:45 PM     5th Circuit     Comments (0)  

June 13, 2014
  United States v. Richards - Fifth Circuit
Headline: Fifth Circuit Upholds Federal "Crush Video" Law Against Constitutional Challenge.

Area of Law: First Amendment, criminal law.

Issue Presented: Whether the federal statute prohibiting creation and distribution of "crush videos" (18 U.S.C. § 48) is unconstitutional under the First Amendment.

Brief Summary: Federal prosecutors charged the defendants with violating the federal "crush video" law, which prohibits the creation or distribution of certain pornographic films in which animals are killed or seriously harmed. The current version of the law was enacted after the U.S. Supreme Court struck down the prior version on First Amendment grounds several years ago. The defendants moved to dismiss the indictment on the grounds that the revised statute still violates the First Amendment. The U.S. District Court for the Southern District of Texas granted the defendants' motion, agreeing that the statute is unconstitutional. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that the revised statute is constitutional. The court accordingly reversed and remanded for further proceedings.

Significance: The Fifth Circuit upholds the federal "crush video" law, a prior version of which had been held unconstitutional by the Supreme Court.

Extended Summary: In United States v. Stevens (2010), the U.S. Supreme Court held that a federal statute prohibiting depictions of animal cruelty violated the First Amendment's Free Speech Clause. Congress responded by amending the statute to reach a narrower range of conduct. The revised statute applies to videos that (1) depict conduct in which animals are intentionally killed or seriously injured and (2) are "obscene." 18 U.S.C. § 48.

Federal prosecutors charged Ashley Nicole Richards and Brent Justice with violating the new version of the law. The defendants moved to dismiss the indictment on the grounds that the revised statute is still unconstitutional on its face. The U.S. District Court for the Southern District of Texas granted the defendants' motion, agreeing that the statute violates the First Amendment.

On appeal, the U.S. Court of Appeals for the Fifth Circuit disagreed with the district court and concluded that the revised statute is constitutional. The Fifth Circuit observed that the new version is significantly narrower than its predecessor, most importantly in that it reaches only "obscene" depictions of harm to animals. "Obscene" speech, as defined in a long line of precedent, is constitutionally unprotected sexual material. Therefore, by definition, the statute by its terms reaches only unprotected speech. The defendants further contended that even if the statute prohibits only obscenity, the statute unfairly targets only a narrow category of obscenity based on the nature of its content (i.e., only those obscene depictions that involve injury to animals). The court rejected this argument, reasoning that particular categories of obscenity may be targeted based on their socially harmful secondary effects - here, cruelty to animals.

Accordingly, the Fifth Circuit reversed the district court and remanded for further proceedings.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub\13/13-20265-CR0.pdf.

Panel: Circuit Judges Wiener, Haynes, and Higginson

Argument Date: 3/11/2014

Date of Issued Opinion: 6/13/2014

Docket Number: No. 13-20265

Decided: Reversed and remanded

Counsel: John Michael Pellettieri, Department of Justice, for Plaintiff-Appellant United States; Joyce A. Raynor for Defendant-Appellee Richards; Marjorie A. Meyers, Federal Public Defender's Office, for Defendant-Appellee Justice.

Author of Opinion: Judge Higginson

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 06/13/2014 09:32 PM     5th Circuit     Comments (0)  

June 4, 2014
  United States v. BP Exploration & Production, Inc. - Fifth Circuit
Headline: Fifth Circuit Affirms Liability for Civil Penalties in Deepwater Horizon Spill.

Area of Law: Clean Water Act.

Issue Presented: Whether the owners of the failed well involved in the Deepwater Horizon oil spill are responsible for civil penalties under the Clean Water Act for "discharg[ing]" pollutants where the pollutants first travelled through another party's structure before entering the environment.

Brief Summary: The United States sought civil penalties under the Clean Water Act against Anadarko Petroleum Corp. and BP Exploration & Production, Inc., the owners of the failed well involved in the 2010 Deepwater Horizon oil spill. The well owners disputed liability on the ground that the oil did not enter the environment directly from the well but rather flowed first through a structure owned by another party, Transocean. The U.S. District Court for the Eastern District of Louisiana entered summary judgment in the government's favor on the issue of liability for discharging pollutants. The U.S. Court of Appeals rejected the well owners' arguments and therefore affirmed.

Extended Summary: Anadarko Petroleum and BP owned the Macondo Well, which had been drilled by the Deepwater Horizon, a mobile offshore drilling vessel owned and operated by Transocean. In April 2010, the cement that sealed the Macondo Well failed, the blowout preventer sitting atop the well also failed, and oil flowed uncontrolled through a riser connecting the well to the Deepwater Horizon vessel. The vessel then caught fire and capsized, and oil spewed through the broken riser into the Gulf of Mexico for months.

The United States brought a civil enforcement action in the U.S. District Court for the Eastern District of Louisiana against various entities involved in the spill. As relevant here, the government sought civil penalties under the Clean Water Act against Anadarko and BP. The Act imposes liability on the owner of any "facility from which oil or a hazardous substance is discharged" into navigable waters. The district court granted summary judgment in the government's favor on the issue of liability. Anadarko and BP appealed.

On appeal, the well owners argued that they had not violated the statute because oil entered the environment through the riser, which was part of Transocean's vessel, rather than escaping into the water directly from their well. The Fifth Circuit rejected that argument, reasoning that a "discharge" occurs where controlled confinement of a substance is lost. Here, there was no disputing that such confinement was lost in the well, even though the uncontrolled oil then flowed through Transocean's riser before entering the water. The Fifth Circuit deemed it irrelevant to the question of liability that Transocean might have been culpable as well, though that factor could influence the size of the penalty ultimately imposed. The Fifth Circuit accordingly affirmed.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/12/12-30883-CV0.pdf.

Panel: Circuit Judges King, Benavides, and Dennis

Argument Date: 12/4/2013

Date of Issued Opinion: 6/4/2014

Docket Number: No. 12-30883

Decided: Affirmed

Counsel: Maggie B. Smith, U.S. Department of Justice, for Plaintiff-Appellee United States; David Bruce Salmons, Bingham McCutchen LLP, for Defendant-Appellant Anadarko Petroleum Corp.; Richard Cartier Godfrey, Kirkland & Ellis LLP, for Defendant-Appellant BP Exploration & Production, Inc.

Author of Opinion: Judge Benavides

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 06/04/2014 09:29 PM     5th Circuit     Comments (0)  

April 25, 2014
  United States v. Cannon - Fifth Circuit
Headline: Fifth Circuit Rejects Constitutional Challenge to Federal Hate Crimes Law.

Area of Law: Thirteenth Amendment; criminal law.

Issue Presented: Whether the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249(a)(1), is a valid exercise of Congress's power under § 2 of the Thirteenth Amendment.

Brief Summary: Defendants Cannon, Kerstetter, and McLaughlin were convicted in the U.S. District Court for the Southern District of Texas of committing a race-motivated hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 ("Shepard-Byrd Act"), 18 U.S.C. § 249(a)(1). Congress passed the relevant portion of the Shepard-Byrd Act pursuant to its powers under the Thirteenth Amendment, which abolished slavery and involuntary servitude. Defendants appealed, arguing that the Shepard-Byrd Act is unconstitutional. They also argued that the evidence presented at trial was insufficient to prove that they attacked their victim because of his race. The U.S. Court of Appeals for the Fifth Circuit affirmed their convictions because the Supreme Court's Thirteenth Amendment precedent allows Congress to define and regulate the "badges" and "incidents" of slavery so long as their definition is rational, and the Shepard-Byrd Act survives rational basis review, and because there was sufficient evidence in the record from which a reasonable jury could conclude that Defendants caused bodily injury to their victim because of his race.

Extended Summary: Defendants Cannon, Kerstetter, and McLaughlin were convicted in the U.S. District Court for the Southern District of Texas of committing a race-motivated hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 ("Shepard-Byrd Act"), 18 U.S.C. § 249(a)(1), for a 2011 assault in Harris County, Texas. Section 249(a)(1) makes it a federal crime to "willfully cause[] bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person." Congress passed this section of the Shepard-Byrd Act pursuant to its powers under the Thirteenth Amendment, which abolished slavery and involuntary servitude. Defendants appealed, arguing that the relevant portion of the Shepard-Byrd Act is unconstitutional. They also argued that the evidence presented at trial was insufficient to prove that they attacked their victim because of his race.

The U.S. Court of Appeals for the Fifth Circuit affirmed the convictions because the Supreme Court's Thirteenth Amendment precedent, namely Jones v. Alfred H. Mayer Co. (1968), allows Congress to define and regulate the "badges" and "incidents" of slavery so long as their definition is rational. Section 249(a)(1) of the Shepard-Byrd Act survives rational basis review because Congress could rationally determine that racially motivated violence is a badge or incident of slavery. Racially motivated violence was essential to the enslavement of African-Americans and was widely employed after the Civil War in an attempt to return African-Americans to a position of de facto enslavement. In light of these facts, it cannot be said that Congress was irrational in determining that racially motivated violence is a badge or incident of slavery. The court noted that other portions of the Shepard-Byrd Act, which apply to other protected categories and derive from other congressional powers, were not at issue in this case.

The Fifth Circuit also held there was sufficient evidence in the record from which a reasonable jury could conclude that Defendants caused bodily injury to their victim because of his race. Accordingly, the convictions were affirmed.

Circuit Judge Elrod, the author of the majority opinion, also filed a special concurrence. The opinion expressed concern that there is a growing tension between the Supreme Court's older precedents regarding the scope of Congress's powers under § 2 of the Thirteenth Amendment and the Supreme Court's more recent decisions regarding the other Reconstruction Amendments and the Commerce Clause.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/12/12-20514-CR0.pdf.

Panel: Circuit Judges Reavley, Elrod, and Graves.

Argument Date: 8/5/2013

Date of Issued Opinion: 4/24/2013

Docket Number: No. 12-20514

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Thomas Evans Chandler, U.S. Dept. of Justice, for Plaintiff-Appellee United States; Thomas S. Berg, for Defendant-Appellant Cannon; Mervyn M. Mosbacker, Jr., for Defendant-Appellant Kerstetter; and Richard B. Kuniansky, Kuniansky & Associates, for Defendant-Appellant McLaughlin.

Author of Opinion: Circuit Judge Elrod (majority opinion and special concurrence)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/25/2014 10:44 AM     5th Circuit     Comments (0)  

March 28, 2014
  Planned Parenthood of Greater Texas Surgical Health Services v. Abbott - Fifth Circuit
Headline: Fifth Circuit Upholds Texas Abortion Regulations.

Area of Law: Abortion.

Issue Presented: Whether requiring physicians performing or inducing an abortion to have admitting privileges at a hospital no more than thirty miles from the location where the abortion is provided imposes an undue burden on a woman's right to choose an abortion. And, whether mandating that the administration of abortion - inducing drugs comply with the protocol authorized by the Food and Drug Administration amounts to a ban on pre-viability abortion in some circumstances.

Brief Summary: Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and three physicians (collectively Planned Parenthood) sued the Attorney General of Texas and other individuals (collectively the State), seeking to enjoin two provisions of 2013 Texas House Bill No. 2 (H.B. 2) pertaining to the regulation of surgical abortions and abortion - inducing drugs. The U.S. District Court for the Western District of Texas held that parts of both provisions were unconstitutional and granted injunctive relief. A motions panel of the U.S. Court of Appeals for the Fifth Circuit granted a stay pending appeal, and the United States Supreme Court upheld the stay. On appeal, the Fifth Circuit concluded that both of the challenged provisions are constitutional and therefore reversed and rendered judgment, with one exception, for the State.

Extended Summary: Planned Parenthood of Greater Texas Surgical Health Services and other abortion facilities and three physicians (collectively Planned Parenthood) sued the Attorney General of Texas and other individuals (collectively the State), seeking to enjoin two provisions of 2013 Texas House Bill No. 2 (H.B. 2). The first provision requires that a physician performing or inducing an abortion have admitting privileges on the date of the abortion at a hospital no more than thirty miles from the location where the abortion is provided; and the second provision mandates that the administration of abortion - inducing drugs comply with the protocol authorized by the Food and Drug Administration (FDA). The U.S. District Court for the Western District of Texas permanently enjoined the admitting - privileges provision and partially enjoined the medication abortion regulation. The State noted its appeal and moved for an emergency stay. The U.S. Court of Appeals for the Fifth Circuit granted a stay pending appeal, which the United States Supreme Court upheld.

Admitting Privileges Requirement: Planned Parenthood argued that the admitting - privileges requirement lacked a rational basis and imposed an undue burden on a woman's right to choose an abortion.

To show that the admitting - privileges requirement lacked a rational basis, Planned Parenthood produced evidence that there is an extremely low risk of a complication from or after an abortion, that ER doctors are qualified to treat most of these complications, and that the provision has the effect of restricting the availability of abortion within the state because the requirement will close one-third of the state's abortion facilities. The State argued that there are four main benefits supporting the requirement: (a) it provides a more thorough evaluation mechanism of physician competency which better protects patient safety; (b) it acknowledges and enables the importance of continuity of care; (c) it enhances inter - physician communication and optimizes patient information transfer and complication management; and (d) it supports the ethical duty of care for the operating physician to prevent patient abandonment.

The Fifth Circuit concluded that the State acted within its prerogative to regulate the medical profession by heeding these patient - centered concerns and requiring abortion practitioners to obtain admitting privileges at a nearby hospital, and that the State is not required under rational basis review to choose the least restrictive means to achieve a legitimate goal.

Additionally, the Fifth Circuit held that even though the State articulated rational bases for this law, and even though its purpose was not impugned, Planned Parenthood could succeed if the effect of the law substantially burdened women's access to abortions in Texas. However, the Fifth Circuit held that an increase of travel of less than 150 miles for some women is not an undue burden. Second, the assertion that "there will be abortion clinics that will close" is too vague. Although some clinics may be required to shut their doors, there is no showing that any woman will lack reasonable access to a clinic within Texas. And, third, the record does not show that abortion practitioners will likely be unable to comply with the privileges requirement.

Planned Parenthood further contended that H.B. 2 does not offer abortion providers a long enough "grace period" to comply with the admitting-privileges provision. H.B. 2 gives abortion providers approximately 100 days to apply for admitting privileges, which, on its face, is a sufficient grace period. However, under Texas law, hospitals can take up to 170 days from the date of application to respond. It is unreasonable to expect that all abortion providers will be able to comply with the admitting-privileges provision within 100 days when receiving a response from a hospital processing an application for admitting privileges can take 170 days. Accordingly, the Fifth Circuit concluded that pursuant to H.B. 2's severability provision, § 10(b), the admitting - privileges requirement may not be enforced against abortion providers who applied for admitting privileges within the grace period allowed under H.B. 2, but are awaiting a response from a hospital.

Medication Abortions Provision: H.B. 2 mandates that medication abortions satisfy the protocol approved for such abortions by the FDA and outlined in the final printed label (FPL) for the abortifacient drug mifepristone. Since the FDA authorized the protocol for medication abortions, doctors have developed an off - label protocol that differs from the FDA - approved version. In particular, although the FPL limits the administration of a medication abortion to forty - nine days following a woman's last menstrual period (LMP), doctors regularly administer medication abortions up to sixty - three days LMP, and sometimes as late as seventy days LMP.

Planned Parenthood argued that for women who suffer from certain medical conditions that make surgical abortion significantly more risky, H.B. 2 acts as a ban to pre-viability abortion after forty - nine days LMP. The Fifth Circuit held that H.B. 2's regulations on medication abortion do not facially require a court - imposed exception for the life and health of the woman. First, the conditions that supposedly require an off-label protocol have not been clearly defined. Second, Planned Parenthood has not pointed to any evidence of scientific studies or research in the record showing this to be true. Third, H.B. 2 does not ban an entire abortion method. Rather, it merely shortens the window during which a woman may elect to have a medication abortion.

The Fifth Circuit also noted that Planned Parenthood's facial attack on the Act should not have been entertained because the proper means to consider exceptions is by as - applied challenge.

The Fifth Circuit reversed the district court's ruling and rendered judgment for the State of Texas, except that the admitting privileges requirement, § 10(b), may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/13/13-51008-CV1.pdf.

Panel: Circuit Judges Jones, Elrod, and Haynes

Argument Date: 1/6/2014

Date of Issued Opinion: 3/27/2014

Docket Number: No. 13-51008

Decided: Reversed and rendered

Case Alert Author: Kirsty Davis

Counsel: Helene T. Krasnoff, Planned Parenthood Federation of America, for Plaintiffs-Appellees Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, Planned Parenthood Sexual Healthcare Services, each on behalf of itself, its patients and physicians; and Planned Parenthood Women's Health Center. Janet Crepps, Center for Reproductive Rights, for Plaintiffs-Appellees Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, Southwestern Women's Surgery Center, West Side Clinic, Inc., each on behalf of itself, its patients and physicians; Alan Braid, M.D., Lamar Robinson, M.D., and Pamela J. Richter, D.O., each on behalf of themselves and their patients. Rebecca L. Robertson, ACLU Texas, for Plaintiffs-Appellees Routh Street Women's Clinic and Houston Women's Clinic, each on behalf of itself, its patients and physicians. Jonathan F. Mitchell, Office of the Solicitor General for the State of Texas for Defendants-Appellants Attorney General Gregory Abbott, David Lakey, M.D., and Mari Robinson, Executive Director of the Texas Medical Board.

Author of Opinion: Circuit Judge Jones

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 03/28/2014 02:39 PM     5th Circuit     Comments (0)  

February 26, 2014
  In re Deepwater Horizon - Fifth Circuit
Headline: Fifth Circuit Rules that State Claims Arising from the 2010 Deepwater Horizon Oil Spill Are Blocked by Federal Law.

Area of Law: Outer Continental Shelf Lands Act; Federal Water Pollution Control Act; Oil Pollution Act.

Issues Presented: Whether the Outer Continental Shelf Lands Act provides federal district courts subject-matter jurisdiction, and whether the Federal Water Pollution Control Act and the Oil Pollution Act preempt state-law claims arising on the Outer Continental Shelf.

Brief Summary: Eleven Louisiana coastal parishes (Parishes) filed lawsuits, some of which were filed in state court, against BP and other defendants involved in the April 2010 Deepwater Horizon oil spill. The suits were to recover penalties under the Louisiana Wildlife Protection Statute (Wildlife Statute) for the pollution-related loss of aquatic life and wildlife. The suits that were originally filed in state court were removed to the U.S. District Court for the Eastern District of Louisiana. The district court denied the Parishes' motions to remand and then dismissed all of the Parishes' claims as preempted by federal law. Both decisions were challenged in the Parishes' appeal. The U.S. Court of Appeals for the Fifth Circuit agreed with the district court that the state-law claims were removable pursuant to the jurisdictional provision of the Outer Continental Shelf Lands Act (OCSLA), and it also affirmed the district court's dismissal of the claims as preempted by federal law.

Extended Summary: Eleven Louisiana coastal parishes (Parishes) filed lawsuits, some of which were filed in state court, against BP and other defendants involved in the April 2010 Deepwater Horizon oil spill. The suits were to recover penalties under the Louisiana Wildlife Protection Statute (Wildlife Statute) for the pollution-related loss of aquatic life and wildlife. The suits that were originally filed in state court were removed to the U.S. District Court for the Eastern District of Louisiana, which denied the Parishes' motions to remand and then dismissed all of the Parishes' claims as preempted by federal law. Both decisions were challenged in the Parishes' appeal to the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit held that § 23(b)(1) of the Outer Continental Shelf Lands Act (OCSLA) gives the federal district courts jurisdiction over cases "in connection with . . . any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals." The fact that the oil spill occurred because of the defendants' "operations" in exploring for and producing oil on the Outer Continental Shelf (OCS) cannot be contested. OCSLA § 23(b)(1) requires only a "but-for" connection. It is undeniable that the oil and other contaminants would not have entered into the State of Louisiana's territorial waters "but for" the defendants' drilling and exploration operation. The district court therefore had original federal jurisdiction, and therefore also removal jurisdiction, under OCSLA.

The Fifth Circuit also held that under International Paper Co. v. Ouellette the correct law to apply is that of the location of the point source. In this case, the Federal Water Pollution Control Act (aka Clean Water Act, CWA) and its implementing regulations comprehensively govern oil exploration and development on the OCS. Further, the Court concluded that Congress did not reject that interpretation explicitly or by negative implication when it passed the Oil Pollution Act (OPA). Congress intended that the OPA would build upon the CWA to create a single federal law providing cleanup authority, penalties, and liability for oil pollution. In sum, federal law, which is the law of the point source in this case, exclusively applies to the claims generated by the oil spill in any affected state or locality.

Lastly, the Fifth Circuit held that the savings clauses contained in the CWA and OPA do not save a state's laws where the discharge did not occur "within" the state, and hence they have no effect on this case.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/12/12-30012-CV0.pdf.

Panel: Circuit Judges Jones, Barksdale, and Southwick

Argument Date: 3/5/2013

Date of Issued Opinion: 2/24/2014

Docket Number: No. 12-30012

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Stephen B. Murray, Jr., Murray Law Firm, for Plaintiffs-Appellants Plaquemines Parish and Orleans Parish; Peter J. Butler, Jr., Breazeale, Sachse & Wilson, L.L.P., for Plaintiff-Appellant St. Bernard Parish; Walter J. Leger, Jr., Leger & Shaw, for Plaintiff-Appellant Lafourche Parish; C. Berwick Duval, II, Duval, Funderburk, Sundbery, Lovell & Watkins, for Plaintiffs-Appellants Terrebonne Parish and Jefferson Parish; Victor L. Marcello, Talbot, Carmouche & Marcello, for Plaintiffs-Appellants St. Charles Parish, St. Mary Parish, and St. Tammany Parish; Philip Francis Cossich, Jr., Cossich, Sumich, Parsiola & Taylor, L.L.C., for Plaintiff-Appellant Cameron Parish; Richard Cartier Godfrey, Kirkland & Ellis, L.L.P., for Defendants-Appellees BP Exploration & Production, Inc., BP Products North America, Inc., BP America, Inc., and British Petroleum, P.L.C.; Donald Everett Godwin, Godwin Lewis, P.C., for Defendant-Appellee Halliburton Energy Services, Inc.; Steven Lynn Roberts, Sutherland Asbill & Brennan, L.L.P., for Defendants-Appellees Transocean Offshore Deepwater Drilling, L.L.C., Transocean Deepwater, Inc., Transocean Holdings, L.L.C., and Triton Asset Leasing GMBH; Russell S. Post, Beck Redden, L.L.P., for Defendant-Appellee Cameron International Corp.; Allyson Newton Ho, Morgan, Lewis & Bockius, L.L.P., for Defendant-Appellee M-I, L.L.C.; Glenn G. Goodier, Jones Walker LLP, for Defendant-Appellee Weatherford US, L.P.; David Bruce Salmons, Bingham McCutchen, L.L.P., for Defendants-Appellees Anadarko Petroleum Corp. and Anadarko E&P Co., L.P.; John F. Pritchard, Pillsbury Winthrop Shaw Pittman, L.L.P., for Defendants-Appellees Moex Offshore 2007, L.L.C. and Moex USE Corp.

Author of Opinion: Judge Jones

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 02/26/2014 01:09 PM     5th Circuit     Comments (0)  

February 13, 2014
  United States v. Baker - Fifth Circuit
Headline: Fifth Circuit Rules that Sentence Enhancement for Distributing Child Pornography Does Not Require Knowledge of a File-Sharing Program's Capabilities.

Area of Law: Sentencing.

Issue Presented: Whether the two-level sentencing enhancement under U.S. Sentencing Guidelines § 2G2.2(b)(3)(F) for distributing child pornography contains a scienter requirement.

Brief Summary: Baker pleaded guilty to receiving material involving the sexual exploitation of a minor. At sentencing, the U.S. District Court for the Northern District of Texas imposed a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography through Baker's use of a file-sharing program. Baker unsuccessfully objected to the two-level increase, arguing that he did not know how the file-sharing program worked. Baker asserted that he was unaware that others could download from his computer, and therefore he could not have knowingly distributed pornography, which he argued was required for the § 2G2.2(b)(3)(F) enhancement. Baker appealed to the U.S. Court of Appeals for the Fifth Circuit, which held that § 2G2.2(b)(3)(F) does not contain a scienter requirement and affirmed the district court's imposition of the two-level enhancement.

Significance: There is a split between circuits over whether § 2G2.2(b)(3)(F) contains a scienter requirement.

Extended Summary: Baker pleaded guilty to receiving material involving the sexual exploitation of a minor. At sentencing, the U.S. District Court for the Northern District of Texas imposed a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography through Baker's use of the file-sharing program Frostwire. Baker unsuccessfully objected to the two-level increase, arguing that he did not know how the file-sharing program worked. Baker asserted that he was unaware that others could download from his computer, and therefore he could not have knowingly distributed pornography, which he argued was required for the § 2G2.2(b)(3)(F) enhancement. Baker appealed to the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit held that, firstly, the guideline's plain language illustrates that § 2G2.2(b)(3)(F) does not contain a scienter requirement. Section 2G2.2(b)(3)(F) provides for a two-level increase "if the offense involved [] [d]istribution" of child pornography where the distribution is not to minors or for something of value. The commentary accompanying § 2G2.2(b)(3)(F), defines "distribution" as "any act . . . related to the transfer of material involving the sexual exploitation of a minor." Use of the word "any" to modify "act" signals that the phrase should be construed broadly, and does not contain an implicit mens rea. The range of examples of "distribution" provided in the commentary further establishes that "transfer" should be interpreted liberally. Moreover, the guideline commentary lists "posting material involving the sexual exploitation of a minor on a website for public viewing" as an example of distribution, and downloading child pornography to a publicly accessible folder through use of file-sharing software is akin to posting such material.

Secondly, the language surrounding the operative definition reinforces this plain-language reading of § 2G2.2(b)(3)(F). In the same commentary that defines "distribution" without requiring an express mens rea, the Sentencing Commission defined "distribution to a minor" as the "knowing distribution to an individual who is a minor at the time of offense." The drafters' explicit use of a scienter requirement in this instance indicates that its omission from the definition of "distribution" was not an oversight in need of judicial insertion.

Neither the general presumption against strict-liability crimes nor the rule of lenity applies here, the Fifth Circuit also ruled.

Therefore, the Fifth Circuit held that § 2G2.2(b)(3)(F) does not contain a scienter requirement, and it affirmed the district court's imposition of the two-level enhancement.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/12/12-10834-CR0.pdf.

Panel: Circuit Judges Reavley, Davis, and Higginson

Argument Date: 12/03/2013

Date of Issued Opinion: 02/12/2014

Docket Number: No. 12-10834

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Brian W. McKay, Assistant U.S. Attorney, for Plaintiff-Appellee; Monica F. Markley, Federal Public Defender's Office, Northern District of Texas, for Defendant-Appellant Baker.

Author of Opinion: Circuit Judge Higginson

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 02/13/2014 03:14 PM     5th Circuit     Comments (0)  

November 12, 2013
  BP RE, L.P. v. RML Waxahachie Dodge, L.L.C. - Fifth Circuit
Headline: Fifth Circuit Finds Bankruptcy Court's Exercise of Jurisdiction Unconstitutional.

Area of Law: Bankruptcy, Constitutional Law.

Issue Presented: Whether the bankruptcy court, acting with the parties' consent, has the constitutional authority to enter judgment on "non-core" claims related to a bankruptcy filing.

Brief Summary: BP RE, L.P. ("BPRE") filed a petition for Chapter 11 bankruptcy relief as well as a related adversary complaint in the federal bankruptcy court. The adversary complaint alleged "non-core" state-law tort and contract claims against several RML entities ("RML") regarding the negotiation of the sale and lease of a car dealership and related property. BPRE consented to the entry of a final judgment by the bankruptcy court pursuant to 28 U.S.C. § 157(c)(2). The bankruptcy court ultimately entered judgment denying BPRE's claims, and the district court affirmed the bankruptcy court's judgment. The U.S. Court of Appeals for the Fifth Circuit held that the bankruptcy court lacked Article III authority to enter final judgment on BPRE's claims.

Significance: This decision builds on the U.S. Supreme Court's decision in Stern v. Marshall (2011) and further limits the authority of bankruptcy courts to enter final judgments.

Extended Summary: BP RE, L.P. ("BPRE") filed a petition for Chapter 11 bankruptcy relief as well as a related adversary complaint in the federal bankruptcy court. The adversary complaint alleged "non-core" state-law tort and contract claims against several RML entities ("RML") regarding the negotiation of the sale and lease of a car dealership and related property. These claims were related to the bankruptcy in that recovery on the claims brought by BPRE, the debtor, would augment BPRE's estate. In non-core proceedings such as these, the bankruptcy court has the power to issue proposed findings of fact and conclusions of law for the district court's consideration, and - pursuant to 28 U.S.C. § 157(c)(2) - the bankruptcy court may enter a final judgment if the parties agree to give it that authority. BPRE consented to the entry of a final judgment by the bankruptcy court. BPRE later moved to withdraw this consent and have the district court hear the case when it was denied its untimely request for a jury trial. The district court rejected BPRE's attempt to withdraw its consent, because the case had already been litigated in the bankruptcy court for six months.

The bankruptcy court entered judgment against BPRE on its claims, and on appeal the district court affirmed in part and vacated in part. On remand, the bankruptcy court again denied relief to BPRE. On a second appeal, the district court affirmed. On further appeal, the U.S. Court of Appeals for the Fifth Circuit held that the bankruptcy court lacked Article III authority to enter final judgment on BPRE's claims, and it consequently vacated the district court's judgment and remanded the case back to the district court.

The Fifth Circuit largely relied on a recent Supreme Court case, Stern v. Marshall (2011), which held that a bankruptcy court lacked constitutional authority to enter final judgment on a debtor's state-law counterclaim even though a statute specifically conferred such authority. Bankruptcy judges are appointed by the court of appeals and do not receive the same authority and tenure as Article III judges. The Fifth Circuit found that in the instant case, the bankruptcy court had the statutory authority to render a final binding decision because the parties had consented to the district court referring the case to the bankruptcy court pursuant to 28 U.S.C. § 157(c)(2). However, the bankruptcy court did not have the constitutional authority to render a final binding decision on BPRE's claims. The Fifth Circuit found that the instant claims involved the entry of a final, binding judgment by a court with broad jurisdiction on a common law cause of action, traditionally left for Article III judges. The court further held that parties cannot consent to have the bankruptcy court issue a final and binding judgment against the parties. Although the Fifth Circuit's decision precludes bankruptcy courts from issuing final judgments in non-core matters, it does not preclude the bankruptcy court from submitting proposed findings of fact and conclusions of law for the district court to consider de novo.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/12/12-51270-CV0.pdf.

Panel: Circuit Judges Smith, Garza, and Southwick

Argument Date: 8/6/2013

Date of Issued Opinion: 11/11/2013

Docket Number: No.12-51270 consolidated with No. 12-51279

Decided: Vacated and remanded

Case Alert Author: Yong Eoh

Counsel: Kevin James Terrazas for Appellant BP RE, L.P; Lyndel Anne Mason for Appellee RML Waxahachie Dodge, L.L.C.

Author of Opinion: Judge Smith

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 11/12/2013 09:30 PM     5th Circuit     Comments (0)  

November 1, 2013
  Planned Parenthood of Greater Texas Surgical Health Services v. Abbott - Fifth Circuit
Headline: Fifth Circuit Allows Most of the Recently Enacted Texas Abortion Regulations to Come into Effect, at Least Temporarily.

Area of Law: Constitutional Law, Abortion.

Issue Presented: Whether the State's emergency motion to stay the district court's injunction against two new restrictions on abortion should be granted pending the outcome of the appeal on the merits.

Brief Summary: After Texas enacted a new law regulating abortion, Planned Parenthood and others filed suit to block the law from taking effect. In expedited proceedings, the U.S. District Court for the Western District of Texas enjoined portions of the law the day before it was scheduled to come into effect. The State of Texas appealed to the U.S. Court of Appeals for the Fifth Circuit and sought an emergency stay of the district court's injunction. The Fifth Circuit largely granted the State's request, allowing most of the new abortion law to come into effect, at least until a final resolution of the appeal.

Extended Summary: This case involves Texas House Bill No. 2, which imposed limitations on the performance of abortions and which was passed into law in July 2013. The law requires a physician performing or inducing an abortion to have admitting privileges at a hospital no more than thirty miles from the location where the abortion is performed or induced. The law also largely limits the use of abortion-inducing drugs to uses that are authorized by an FDA protocol. Notably, the FDA protocol permits medication-induced abortions only up to 49 days after the last menstrual period, while common "off-label" protocols are employed up to 63 days after the last menstrual period and require fewer office visits.

Planned Parenthood and others filed suit challenging the constitutionality of the restrictions. On October 28, one day before the provisions were scheduled to take effect, the U.S. District Court for the Western District of Texas found the law unconstitutional in part and granted injunctive relief. The State appealed the decision to the U.S. Court of Appeals for the Fifth Circuit and filed an emergency motion to stay the district court's injunction.

The Fifth Circuit granted the State's emergency motion and stayed most of the district court's injunction pending final resolution of the appeal. The court began its analysis by considering whether the State had shown that it was likely to prevail on the merits of the appeal. Regarding the admitting-privileges provision, the Fifth Circuit found that the State provided a rational basis for the requirement, namely the State's interests in ensuring health and safety and in regulating the medical profession. The court also found that the requirement did not impose an unconstitutional, undue burden on the abortion right. It relied on the Supreme Court case Gonzales v. Carhart (2007), which found that if a statute does not facially indicate that its purpose is to place a substantial obstacle in the path of a woman seeking an abortion, an incidental burden usually cannot be enough to invalidate it. Additionally, the Fifth Circuit found that the State would suffer irreparable harm by denying the public interest in the enforcement of its laws.

Regarding the restrictions on medication abortions, the Fifth Circuit found that the State was likely to prevail on the merits because the restrictions did not, with limited exceptions, impose an undue burden. The court did, however, recognize a limited category of cases in which the restrictions could be unconstitutional. That category involves women between 50 and 63 days after the last menstrual period for whom a surgical abortion would, in the treating physician's judgment, be unsafe. Apart from that category, the court stayed the district court's injunction.

In granting the State's motion for a stay pending appeal, the Fifth Circuit panel noted that its determinations do not bind the merits panel.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/13/13-51008-CV0.pdf.

Panel: Circuit Judges Owen, Elrod, and Haynes

Date of Issued Opinion: 10/31/2013

Docket Number: No. 13-51008

Decided: Motion for Stay Granted in Part

Case Alert Author: Barira Munshi

Counsel: Helene T. Krasnoff, Planned Parenthood Federation of America for Plaintiffs - Appellees Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood Center for Choice, and Planned Parenthood Sexual Healthcare Services; Janet Crepps, Center for Reproductive Rights for Plaintiffs - Appellees Whole Woman's Health, Austin Women's Health Center, Killeen Women's Health Center, Southwestern Women's Surgery Center, West Side Clinic, Inc., Routh Street Women's Clinic, Houston Women's Clinic, Alan Baird, Lamar Robinson, and Pamela J. Richter; Helene T. Krasnoff, Planned Parenthood Federation of America for Plaintiff - Appellee Planned Parenthood Women's Health Center; Jonathan F. Mitchell, Office of the Solicitor General for Defendants - Appellants Attorney General Gregory Abbott, David Lakey, and Mari Robinson.

Author of Opinion: Judge Owen

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 11/01/2013 11:26 AM     5th Circuit     Comments (0)  

October 17, 2013
  Texans for Free Enterprise v. Texas Ethics Commission - Fifth Circuit
Headline: Fifth Circuit Rules that Texas Ban on Corporate Contributions to Political Committees Violates the First Amendment.

Area of Law: First Amendment, Campaign Finance.

Issue Presented: Whether to uphold the preliminary injunction preventing the Texas Ethics Commission from enforcing portions of the Texas Election Code against the political committee Texans for Free Enterprise (TFE), thereby allowing TFE to receive contributions from corporations to fund political speech in connection with an election cycle.

Brief Summary: TFE is a political committee that, while it raises money to fund its own political speech, does not make any contributions to political candidates. Bound by provisions of the Texas Election Code prohibiting it from receiving contributions from corporations, TFE sued the Texas Ethics Commission seeking an injunction to prevent the ban from being enforced against it. The U.S. District Court for the Western District of Texas granted a preliminary injunction in TFE's favor. The Commission appealed, and the U.S. Court of Appeals for the Fifth Circuit affirmed. To uphold the injunction, the Court had to find that TFE had established "a substantial likelihood of success on the merits." In finding that TFE had established this element, the Court went on to hold that "the challenged law is incompatible with the First Amendment." To make this declaration, the Fifth Circuit relied heavily on Citizens United v. FEC, the 2010 Supreme Court case that held unconstitutional the federal ban on independent expenditures by corporations, and also on the decisions of other courts of appeals. The Fifth Circuit refrained from establishing a level of scrutiny to be applied in this or future such cases.

Significance: The Fifth Circuit held the provisions of the Texas Election Code preventing political committee contributions by corporations to be unconstitutional.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/13/13-50014-CV0.pdf.

Panel: Circuit Judges Smith, Dennis, and Higginson.

Argument Date: 9/4/2013.

Date of Issued Opinion: 10/16/2013.

Docket Number: No. 13-50014.

Decided: Affirmed.

Case Alert Author: LaDelle Davenport.

Counsel: Evan Scott Greene, Office of the Attorney General, for Appellants Texas Ethics Commission and David A. Reisman; Chris K. Gober, Gober Hilgers, P.L.L.C., for Appellee Texans for Free Enterprise.

Author of Opinion: Judge Smith.

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl.

    Posted By: Aaron Bruhl @ 10/17/2013 03:18 PM     5th Circuit     Comments (0)  

October 11, 2013
  Noatex Corp. v. King Construction of Houston, L.L.C. - Fifth Circuit
Headline: Fifth Circuit Strikes Down Mississippi Pre-Judgment Remedy as Violative of Due Process.

Area of Law: Constitutional law, due process, construction law.

Issue Presented: Whether Mississippi's "Stop Notice" statute, which protects subcontractors by freezing funds held by a property owner before they are paid to the prime contractor, violates the due process rights of the prime contractor.

Brief Summary: Auto Parts Manufacturing Mississippi ("APMM") and Noatex Corporation ("Noatex") entered into a contract whereby Noatex agreed to construct an auto parts manufacturing facility for APMM. Noatex subsequently entered into a subcontract with King Construction of Houston, L.L.C. ("King") for the supply of additional materials and labor. Later, Noatex alleged that APMM owed it payments for goods and services rendered. Noatex also questioned several of the invoices that King had sent to Noatex. King sent a written notification to APMM, informing APMM of the amount Noatex allegedly owed King. Under Mississippi's "Stop Notice" statute, which aims to protect the rights of subcontractors, this notification had the effect of freezing funds in APMM's possession due to be paid to Noatex. Noatex filed suit seeking a declaration that this procedure deprived it of property without due process. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's ruling that the Mississippi Stop Notice statute was unconstitutional because it "deprive[d] the contractor of a significant property interest, the right to receive payment and to be free from any interference with that right."

Extended Summary: Auto Parts Manufacturing Mississippi ("APMM") and Noatex Corporation ("Noatex") entered into a contract whereby Noatex agreed to construct an auto parts manufacturing facility for APMM. Noatex subsequently entered into a subcontract with King Construction of Houston, L.L.C. ("King") for the supply of additional materials and labor. Later, Noatex alleged that APMM owed it payments for goods and services rendered. Noatex also questioned several of the invoices that King had sent to Noatex. Pursuant to Mississippi's "Stop Notice" statute, King sent a written notification to APMM, informing APMM of the amount Noatex allegedly owed King, and that King would be filing a Laborer's and Materialman's Lien and Stop Notice in Mississippi's chancery court.

The relevant parts of the Mississippi Stop Notice statute, Miss. Code Ann. § 85-7-181, read that "[w]hen any contractor . . . shall not pay [a subcontractor] . . . any such [subcontractor] may give notice in writing to the [property owner] of the amount due him . . . ; and, thereupon the amount that may be due upon the date of the service of such notice by such owner to the contractor . . . shall be bound in the hands of such owner for the payment . . . of all sums due [to the subcontractor]." According to the statute, the funds in APMM's possession were frozen for the benefit of King, and as a result of King's filing of the stop notice in the lis pendens record of the chancery court, King's lien would carry priority over the property that was the subject of the dispute.

Several lawsuits resulted from this dispute. The relevant lawsuit here involved Noatex filing a declaratory judgment action against King and its principal to challenge the facial constitutionality and constitutionality as-applied of the state statute. The State intervened in the action to defend the statute's constitutionality. The United States District Court for the Northern District of Mississippi granted Noatex's motion for summary judgment in the declaratory judgment action and held the statute to be facially unconstitutional because it deprived contractors of property without due process of law.

On appeal, the State contended that the lower court erred in finding a significant property interest because the court equated the statute to an attachment as opposed to a mechanic's or supplier's lien, and also that the court misweighed the relevant public and private interests implicated by the statute and failed to consider procedural safeguards made available by Mississippi law.

The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's ruling and held that the Mississippi Stop Notice statute "deprives the contractor of a significant property interest, the right to receive payment and to be free from any interference with that right." The court emphasized the statute's lack of procedural safeguards, particularly the statute's failure to provide for any notice or hearing of any kind prior to deprivation. The statute did not require the posting of a bond on the part of the subcontractor prior to attachment, nor a showing of exigent circumstances for attachment, and even failed to require any affidavit or attestation setting out the facts of the dispute and the legal rationale for the attachment. The court held the safeguards identified by the State to be inadequate. More specifically, the civil penalty provision for "falsely and knowingly" filing a stop notice claim, as a post-deprivation remedy, did little to provide contractors with the right to a notice or hearing prior to deprivation. The court similarly found the State's "extraordinary situations" argument to be unpersuasive.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/12/12-60385-CV0.pdf.

Panel: Chief Judge Stewart and Circuit Judges Davis and Wiener

Argument Date: 8/7/2013

Date of Issued Opinion: 10/10/2013

Docket Number: No. 12-60385 c/w No. 12-60586

Decided: Affirmed

Case Alert Author: Yong Eoh

Counsel: Robert Espensen Kohn, Kohn Law Group, Inc., for Noatex Corp.; Douglas T. Miracle, Office of the Attorney General, for the State of Mississippi.

Author of Opinion: Chief Judge Stewart

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 10/11/2013 09:23 PM     5th Circuit     Comments (0)  

October 3, 2013
  In re Deepwater Horizon - Fifth Circuit
Headline: Troubled by the Administration of the Deepwater Horizon Settlement Agreement, the Fifth Circuit Orders a Halt to Some Payouts.

Area of Law: Settlement; Environmental.

Issue Presented: Whether the Deepwater Horizon settlement administrator erred by calculating some claimants' economic losses without matching revenues with associated expenses.

Brief Summary: This case involves a dispute over settlement payments to businesses claiming economic injury from the 2010 Deepwater Horizon disaster. BP raised concerns about the administration of the settlement agreement, claiming that the settlement's Administrator was calculating compensation on a cash basis, rather than by requiring the matching of expenses and revenues. The parties and the Administrator could not come to an agreement over how to handle the claims, and they referred their dispute to the U.S. District Court for the Eastern District of Louisiana, which had retained jurisdiction to resolve disputes over the claims process. The district court affirmed the Administrator's approach, holding that revenues and expenses need not be matched. BP then filed a breach of contract claim against the Administrator and a motion for a preliminary injunction to enjoin the Administrator from implementing the settlement in accordance with its announced approach. The Administrator filed a motion to dismiss BP's claim. The district court granted the Administrator's motion. BP appealed to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit was troubled by several features of the district court's interpretation of the agreement and found the agreement ambiguous on some points the district court had interpreted in the claimants' favor. The court of appeals remanded the case to the district court to develop a more complete factual record regarding the meaning of the settlement agreement. The court also reversed the denial of the preliminary injunction, requiring the district court to halt payments during the proceedings on remand.

Extended Summary: This case involves a claims settlement dispute arising from the 2010 Deepwater Horizon disaster. BP established and funded its own claims process to begin paying out claims immediately instead of at the conclusion of litigation. In February 2011, BP began negotiating a class settlement and in March 2012, the U.S. District Court for the Eastern District of Louisiana granted the parties' request to implement a process to transfer claims to a court-supervised program. Both parties filed notice of their proposed settlement and the district court directed the settlement's Administrator to begin processing claims in June 2012. BP raised concerns about the claimants' accounting methods and believed that those methods could cause erroneous variable profit calculations. Specifically, BP requested the Administrator to consider the issue of "assignment of revenue to the proper months" and the "proper matching of revenue and corresponding expenses." BP believed that the Administrator was calculating some claimants' compensation based only on cash receipts and cash disbursements. BP contended that a claimant's expenses must be "matched" to corresponding revenue; i.e., even if a business operated on a cash-basis system, the revenues and expenses related to a certain transaction should be matched in order to correspond to economic reality. The Administrator issued a policy announcement stating that he would "typically consider both revenues and expenses in the periods in which those ....were recorded at the time," and would "not typically re-allocate such revenues and expenses to different periods." BP alleged that the Administrator misinterpreted the terms of the settlement.

The parties and the Administrator could not come to an agreement, and the dispute went to the district court. The district court affirmed the Administrator's policy announcement, holding that revenues and expenses need not be matched. BP filed a motion to reconsider, which the court denied. BP then filed a breach of contract claim against the Administrator and an emergency motion for a preliminary injunction to enjoin the Administrator from implementing the settlement in accordance with its policy announcement. The Administrator filed a motion to dismiss BP's claim on the basis of failure to state a claim. The district court granted the Administrator's motion, stating that the Administrator could not breach the settlement by interpreting it in compliance with the district court's order. BP appealed the district court's order affirming the Administrator's interpretation of the settlement, its order granting the Administrator's motion to dismiss, and its order denying the preliminary injunction.

On appeal, the U.S. Court of Appeals for the Fifth Circuit found that the settlement agreement was ambiguous in certain respects. Based on the available record, it could not determine with an adequate level of certainty whether a principle for matching expenses and revenues should apply to all claims, and it remanded the case to the district court to develop a more complete factual record regarding the meaning of the settlement agreement. Although the Fifth Circuit did not definitively construe the settlement agreement at this time, it raised a number of serious concerns that it required the district court to consider on remand. In a portion of the opinion that did not gain the adherence of the other panelists, Judge Clement additionally expressed concerns that the district court's interpretation may call into doubt the settlement's validity by allowing payouts to some claimants who were not injured at all. The Fifth Circuit reversed the denial of the preliminary injunction on the grounds that the issue involves a serious legal question and the balance of the equities heavily favors a halt to contested payouts while the district court proceeds on remand.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...ub/13/13-30315-CV0.pdf.

Panel: Circuit Judges Dennis, Clement, and Southwick

Argument Date: 7/8/2013

Date of Issued Opinion: 10/2/2013

Docket Number: No. 13-30315

Decided: Affirmed in part, reversed in part, and remanded

Case Alert Author: Barira Munshi

Counsel: Stephen Jay Herman, Herman, Herman & Katz, for Plaintiffs - Appellees Lake Eugenie & Land Development, Inc., Bon Secour Fisheries, Inc., Fort Morgan Realty, Inc., LFBP 1, L.L.C., Panama City Beach Dolphin Tours & More, L.L.C., Zekes Charter Fleet, L.L.C., William Sellers, Kathleen Irwin, Ronald Lundy, Corliss Gallo, John Tesvich, Michael Guidry, Henry Hutto, Brad Friloux, and Jerry J. Kee; Theodore B. Olson, Gibson, Dunn & Crutcher, for Defendant-Appellant BP Exploration & Production, Inc., BP America Production Company, and BP Pipe Line Company.

Author of Opinion: Judge Clement (Southwick, concurring; Dennis, concurring in part and dissenting in part)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

Edited: 10/07/2013 at 04:35 PM by Media Alerts Moderator

    Posted By: Aaron Bruhl @ 10/03/2013 09:57 PM     5th Circuit     Comments (0)  

September 29, 2013
  EEOC v. Boh Brothers Construction Co., L.L.C. - Fifth Circuit
Headline: En Banc Fifth Circuit Affirms Title VII Liability Based on Gender-Stereotyping in a Same-Sex Sexual Harassment Suit.

Area of Law: Employment discrimination.

Issue Presented: Whether the male-on-male sexual harassment by the employee's supervisor met the two-prong standard for same-sex discrimination and whether the punitive damages awarded by the jury were supported by the record.

Brief Summary: While working on a bridge-maintenance crew, one member of the crew was singled out for "almost-daily verbal and physical harassment because [he] did not conform to [the crew's superintendent's] view of how a man should act." The EEOC brought suit on the victim's behalf, claiming this sexual harassment was motivated by gender-stereotyping and was therefore a violation of Title VII. At trial, the jury found for the EEOC and awarded both compensatory and punitive damages. On appeal, a panel of the U.S. Court of Appeals for the Fifth Circuit overturned the jury verdict. However, on rehearing en banc, the Fifth Circuit upheld the jury verdict. The Court relied on extensive evidence of daily name-calling and repeated sexualized physical acts targeted at the victim to find that the record supported the jury's findings that the harassment violated Title VII. Nevertheless, the Court vacated the $250,000 in punitive damages awarded by the jury because the harassment was not done with the knowledge that it was against federal law.

Significance: The Fifth Circuit directly holds that a plaintiff can rely on gender-stereotyping evidence to support a violation of Title VII in a same-sex discrimination case.

Extended Summary: While working on an all-male bridge-maintenance crew, one member of the crew was singled out for "almost-daily verbal and physical harassment because [he] did not conform to [the crew's superintendent's] view of how a man should act." Both the harasser and the target of the harassment were heterosexual. After complaining to a higher supervisor, the injured party was put on leave without pay, reassigned to another crew, and eventually fired. The EEOC brought suit on behalf of the victim.

At trial, a jury found that the harassment violated Title VII and awarded $201,000 in compensatory damages and $250,000 in punitive damages. The district court adjusted the compensatory damages down to $50,000 to comply with a statutory cap limiting total damages to $300,000. Following the judgment, the district court denied motions for judgment as a matter of law and for a new trial. On Boh Brothers' appeal, a panel overturned the jury verdict citing a lack of evidence to sustain the jury's finding that the harassment violated Title VII's protection against sex discrimination. The EEOC then requested en banc review.

On rehearing, the Fifth Circuit rejected Boh Brothers' claim that a Title VII same-sex discrimination case cannot rely on gender-stereotyping evidence. The Court cited numerous gender-stereotyping decisions based on the Supreme Court's leading precedent, Price Waterhouse. It also expressly agreed with other circuits in interpreting the three evidentiary paths for claiming same-sex harassment discussed in the Supreme Court's Oncale decision as "illustrative, not exhaustive," thereby allowing for the present claim which did not fit within the three paths the Oncale Court established.

The Fifth Circuit then reviewed the jury verdict, stating that the context of this case required that two elements be met: (1) was the harassment "because of . . . sex" and (2) was it severe and pervasive. Finding that the harassment fulfilled the first element, the Court quoted testimony of the harasser in which he admitted to calling the victim names because he found the victim's usage of a personal-hygiene item as feminine. Responding to Judge Jones's claim in her dissenting opinion that the "judgment portends a government-compelled workplace speech code," the majority emphasized that there were other sexualized acts which accompanied the name-calling including the harasser exposing his genitals to the victim and simulating anal sex with the victim. The Court concluded that taken as a whole the record provided enough evidence that the jury's finding of sexual harassment should not be overturned. Regarding the second element, the Court ruled there was enough evidence of daily and repeated harassment to support the jury's finding that the harassment was severe and pervasive. Though the harassment took place on an all-male construction site, the majority found that jury was able to analyze the harassment within the proper social context and still deem the actions as rising to the level of severity required. After having found the evidence sufficient for a Title VII claim, the Court dismissed Boh Brothers' assertion of an affirmative defense to vicarious liability, finding that the company's nondiscrimination policies "offered no specific guidance regarding sexual harassment."

The Court also reviewed the punitive damages awarded by the jury and found that the punitive damages were not supported by the record because the defendants did not know that male-on-male harassment could violate Title VII. Therefore, the harassment was not done "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." After vacating the punitive damages, the Fifth Circuit then remanded the case back to the district court to re-assess the damages award. The district court had previously reduced the compensatory damages from $201,000 to $50,000 alongside the previous award of $250,000 in punitive damages to comply with the statutory cap.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-30770-CV2.wpd.pdf.

Panel: En banc

Argument Date: 5/22/2013

Date of Issued Opinion: 9/27/2013

Docket Number: No. 11-30770

Decided: Affirmed in part, vacated in part, and remanded

Case Alert Author: LaDelle Davenport

Counsel: Walter W. Christy, Coats, Rose, Yale, Ryman & Lee, P.C., for Appellant Boh Brothers Construction Co., L.L.C.; Paul D. Ramshaw for Appellee Equal Employment Opportunity Commission

Author of Opinion: Judge Elrod (Jolly, dissenting; Jones, dissenting; Smith, dissenting; DeMoss, dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

Edited: 09/29/2013 at 05:10 PM by Aaron Bruhl

    Posted By: Aaron Bruhl @ 09/29/2013 12:00 PM     5th Circuit     Comments (0)  

September 24, 2013
  United States v. Ramirez - Fifth Circuit
Headline: Fifth Circuit Rules that Certain Prior Misdemeanor Convictions Can Qualify as "Aggravated Felonies" in Calculating Sentence Enhancements.

Area of Law: Sentencing.

Issue Presented: Whether the defendant's prior state misdemeanor conviction for sexual abuse of a minor can qualify as an "aggravated felony" for purposes of enhancing his federal prison sentence.

Brief Summary: Efrain Hernandez Ramirez was convicted of illegal reentry following removal from the United States. During sentencing, questions arose regarding his prior state misdemeanor conviction for third-degree sexual abuse in 2004. The government argued that Ramirez's prior conviction should be classified as an aggravated felony. Ramirez objected to the classification of his prior conviction as an aggravated felony. The U.S. Court of Appeals for the Fifth Circuit held that the state criminal statute and the criminal information established that Ramirez's conviction was for the sexual abuse of a minor, which the relevant federal sentencing provision expressly includes within the definition of "aggravated felony." Thus Ramirez's prior conviction, though a misdemeanor under state law, qualified as an aggravated felony for calculating federal sentence enhancements.

Extended Summary: Efrain Hernandez Ramirez is a Mexican citizen who returned to the United States several months after his second removal from the country. The government indicted Ramirez in the U.S. District Court for the Northern District of Texas on October 10, 2012, on one count of illegal reentry following removal from the United States.

During sentencing, complications arose regarding Ramirez's prior misdemeanor conviction. In 2004, Ramirez had been convicted in New York for third-degree sexual abuse, a misdemeanor under state law. Ramirez's presentence report ("PSR") included this prior conviction in its calculation of his criminal history category, but it did not factor the conviction into his offense level. The government objected to the PSR, claiming that Ramirez's prior conviction should be classified as an "aggravated felony" within the meaning of the relevant sentencing provisions. Such a classification would increase his total offense level from six to fourteen, and the advisory guideline range would increase from between two and eight months' imprisonment to between twenty-one and twenty-seven months' imprisonment. Ramirez objected to the classification of his prior conviction as an aggravated felony. The district court imposed the enhanced sentence.

On appeal, the U.S. Court of Appeals for the Fifth Circuit first determined that Ramirez's prior conviction was for the sexual abuse of a minor. The court explained that the New York statute is divisible in the sense that it can be violated in several different ways. The court therefore applied the "modified categorical" approach, according to which it used the state criminal information to determine that the defendant violated the portion of the statute criminalizing sexual assaults on minors. The court then proceeded to explain that § 2L1.2 of the Federal Sentencing Guidelines and 8 U.S.C. § 1101(a)(43) define "aggravated felony" expressly to include "murder, rape, or sexual abuse of a minor." The defendant had, therefore, committed an aggravated felony for purposes of his federal sentence even though the offense was a misdemeanor as a matter of state law.

Ramirez claimed that the classification of his prior conviction as an aggravated felony was erroneous for three reasons: (1) the plain meaning and structure of the Federal Sentencing Guidelines indicate that a felony does not include a misdemeanor, (2) contradictory Fifth Circuit law should be limited in its application and is inapplicable to the case at hand, and (3) recent Supreme Court jurisprudence forbids the transformation of his misdemeanor into a felony. The court found Ramirez's arguments to be unpersuasive.

To Ramirez's first point, the court held that the plain meaning of the United States Code stated that murder, rape, or sexual abuse of a minor constitute aggravated felonies. The court stated that the term "aggravated felony" is a term of art that includes certain misdemeanors under state law and that circuit courts have generally held that a misdemeanor conviction can constitute an aggravated felony. To his second point, the court held that while the prior Fifth Circuit case of United States v. Urias-Escobar concerned a different portion of the definition of aggravated felony, the reasoning of the prior case applied here, as it showed that state misdemeanors could come within the federal definition. To his final point, the court held that the factual and legal issues presented in the Supreme Court cases of Carachuri-Rosendo v. Holder and Moncrieffe v. Holder are distinguishable and do not disturb the holding in Urias-Escobar. The court held that Carachuri-Rosendo was not applicable because there was no dispute that Ramirez had been convicted of an offense that the Federal Sentencing Guidelines or the United States Code define as an aggravated felony. The court similarly held that Moncrieffe was not applicable because Moncrieffe required the court to consult other statutes to determine the meaning of "drug trafficking," whereas the provision at issue in the instant case does not require references to additional statutes to determine the meaning of "sexual abuse of a minor."

For these reasons, the Fifth Circuit affirmed the decision of the district court.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...3/13-10473-CR0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges King and Prado.

Argument Date: 9/4/2013

Date of Issued Opinion: 9/23/2013

Docket Number: No. 13-10473

Decided: Affirmed

Case Alert Author: Yong Eoh

Counsel: Susan Cowger, U.S. Attorney's Office, for Plaintiff-Appellee United States of America; Jerry Van Beard and Laura S. Harper, Federal Public Defender's Office, for Defendant-Appellant Efrain Hernandez Ramirez

Author of Opinion: Judge King

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/24/2013 06:19 PM     5th Circuit     Comments (0)  

September 5, 2013
  K.P. v. LeBlanc - Fifth Circuit
Headline: Fifth Circuit Upholds Louisiana Law Excluding Abortion from Malpractice Liability Limits.

Area of Law: Abortion, Medical Malpractice, Fourteenth Amendment.

Issue Presented: (1) Whether the Plaintiffs have standing to bring their claims challenging the validity of Louisiana Act 825 and (2) whether to uphold the district court's permanent injunction against Act 825 based on a finding that the Act violates the Constitution by unduly burdening the right to abortion.

Brief Summary: The Plaintiffs are healthcare providers in Louisiana. The case concerns the extent of their potential liability in a suit for medical malpractice arising from a surgical abortion. At least two of the Plaintiffs were participating in the Louisiana Patient's Compensation Fund, which had been created through Louisiana legislation to provide medical-malpractice insurance for healthcare providers and to limit providers' liability. When the providers were sued concerning the abortion, the Patients' Fund Oversight Board, the entity administering the Fund, relied on Act 825 to deny the benefits of the Fund's protections to the Plaintiffs. Act 825 had removed the limitations of liability which all other procedures enjoyed in conjunction with the Fund and Louisiana's Medical Malpractice Act. At stake in this appeal was the constitutionality of Act 825 and the Plaintiffs' standing to bring the case. The U.S. Court of Appeals for the Fifth Circuit found that the Plaintiffs did have standing to challenge subsection (C)(2) of the Act. However, the Court reversed the district court's ruling that subsection (C)(2) was in violation of the Constitution. The Court did not rule on the merits of the Plaintiffs' challenge to subsection (A) of Act 825, finding that the Plaintiffs lacked standing to bring this claim.

Extended Summary: The Louisiana Medical Malpractice Act limited the liability of healthcare providers and created the Louisiana Patient's Compensation Fund, which effectively acts as a malpractice insurer for participating providers. Louisiana Act 825 creates a special cause of action for injuries occasioned by abortion and excludes abortion providers from the protections and benefits afforded by the Medical Malpractice Act.

The Plaintiffs are healthcare providers in Louisiana who were sued concerning an abortion one of the providers performed. The Patients' Fund Oversight Board, the responsible party for administering the Fund, relied on Act 825 to deny benefits of the Fund's protections to the Plaintiffs.

The Plaintiffs brought a § 1983 action against the Board's members challenging the constitutionality of Act 825, alleging the Act to be vague, lacking a rational basis, and unduly burdensome. The U.S. District Court for the Middle District of Louisiana first dismissed the case for want of jurisdiction under the Eleventh Amendment. In a prior appeal, the Fifth Circuit, finding an Ex Parte Young exception, reversed and remanded. This time, the district court granted Plaintiffs' motion for summary judgment and "held that the Act was void for vagueness, unduly burdensome, and in want of a rational basis." The district court "permanently enjoined the Board . . . from relying on the Act." The present decision is the appeal from this injunction.

The Fifth Circuit first characterized the Plaintiffs' claim that the Act is unconstitutional as "two separate claims": one against subsection (A), which creates a cause of action for abortion-related injuries, and one against subsection (C)(2), which excludes abortion from the Medical Malpractice Act. The Court then explained that an earlier panel's approval of Plaintiffs' standing had only addressed the challenge to subsection (C)(2). Concurring with the previous panel, the Court found that the Plaintiffs had standing, had experienced an injury-in-fact, and that the claim against subsection (C)(2) was not moot. Regarding the Plaintiffs' claim against subsection (A), the Court held that Plaintiffs lacked standing. Consequently, the Court did not reach the merits of any claims against subsection (A) and did not address the Plaintiffs' claim of the Act being unconstitutionally vague because this claim was related only to subsection (A). Limiting its analysis to subsection (C)(2), the Court then rejected the two remaining constitutional challenges. First, the Court found that the Act does not violate the Equal Protection Clause of the Fourteenth Amendment because it is "rationally related to the promotion of informed consent - an unquestionably legitimate end." Second, the Court found that the Act is not unduly burdensome on a woman's right to choose. Citing the Maher-McRae line of Supreme Court cases, the Fifth Circuit reasoned that the Act's "unequal subsidization" is not an obstacle or restriction placed by the government into the path of a woman's free choice. The Court went on to cite the case lineage establishing that the government is not responsible for removing obstacles in that path that are not of the government's making.

In conclusion, the Court reversed the district court's judgment regarding subsection (C)(2) and vacated the judgment regarding subsection (A).

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-30456-CV0.wpd.pdf.

Panel: Circuit Judges Higginbotham, Clement, and Haynes

Argument Date: 12/5/2012

Date of Issued Opinion: 9/4/2013

Docket Number: No. 12-30456

Decided: Reversed in part and vacated in part

Case Alert Author: LaDelle Davenport

Counsel: Stephanie Toti, Center for Reproductive Rights, for Plaintiffs-Appellees K.P. et al.; Carlton Jones, III, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, A.L.C., for Defendants-Appellants Lorraine LeBlanc et al.

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/05/2013 03:23 PM     5th Circuit     Comments (0)  

September 3, 2013
  Davis v. Signal International Texas GP, LLC - Fifth Circuit
Headline: Fifth Circuit Affirms that Employer's Mass Layoff Violated the WARN Act for Lack of Lawful Notice.

Area of Law: Employment.

Issue Presented: Whether the defendant's two facilities were correctly found to be a single site of employment and whether the day before the layoffs began was a permissible date from which to measure the size of the defendant's workforce.

Brief Summary: The plaintiffs sued their former employer Signal International for violating the Worker Adjustment and Retraining Notification Act ("WARN Act"), which requires that certain employers provide written notice sixty days before a "mass layoff" at a "single site of employment." The U.S. District Court for the Eastern District of Texas entered judgment for the employees. On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed. The Fifth Circuit first held that the defendant's two facilities were correctly deemed a single site of employment. The Court ruled that the facilities fell within the flexibility created by the language in 20 C.F.R. § 639.3(i)(8) allowing for "truly unusual organizational situations" to refute the normal finding of separate buildings establishing separate sites. The Court relied on the shared staff, the shared operational purpose, and the proximity of the two facilities to establish them as a single site. The Court also held that the snapshot date the district court used for judging whether there was a mass layoff was acceptable because the governing regulation, 20 C.F.R. § 639.5(a)(2), offered alternatives to the standard snapshot date, which is the date the lawful notice would have been required. In this case, there was no evidence to prove the employment data on the standard date. Instead, relying on an example in the WARN Act's preamble and language in the regulation allowing for alternative snapshot dates, the Court authorized a snapshot from the day before the layoffs.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-41262-CV0.wpd.pdf.

Panel: Circuit Judges Reavley, Elrod, and Graves

Argument Date: 8/8/2013

Date of Issued Opinion: 8/28/2013

Docket Number: No. 12-41262

Decided: Affirmed

Case Alert Author: LaDelle Davenport

Counsel: Bryan Adam Terrell, Weller, Green, Toups & Terrell, for Plaintiff-Appellee Davis; David Sinnott Bland, LeBlanc Bland, P.L.L.C., for Defendant-Appellant Signal International.

Author of the Opinion: Judge Reavley

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/03/2013 03:36 PM     5th Circuit     Comments (0)  

August 30, 2013
  In re Deepwater Horizon - Fifth Circuit
Headline: Fifth Circuit Withdraws Previous Ruling in Deepwater Horizon Case and Seeks Guidance on Texas Insurance Law from State Supreme Court.

Area of Law: Insurance.

Issue Presented: Whether BP's coverage as an additional insured under Transocean's insurance policies is limited by the terms of BP's drilling contract with Transocean.

Brief Summary: This case involves an insurance coverage dispute stemming from the 2010 Deepwater Horizon disaster. BP, P.L.C., sought coverage under insurance policies obtained on its behalf by Transocean Holdings, Inc., owner of the Deepwater Horizon. In response, Ranger Insurance Ltd. and several excess liability insurers (collectively, "the Insurers") filed suit against BP seeking a declaratory judgment of non-liability. BP filed a motion for judgment on the pleadings arguing that it is entitled to insurance coverage as an additional insured of Transocean and that the indemnities detailed in the Drilling Contract between BP and Transocean do not limit the scope of BP's coverage under the insurance policies. The U.S. District Court for the Eastern District of Louisiana denied BP's motion and entered a partial final judgment in favor of the Insurers. BP appealed and the U.S. Court of Appeals for the Fifth Circuit initially reversed the district court's judgment. Following the Insurers and Transocean's petition for rehearing, the Fifth Circuit withdrew its previous ruling and has now certified determinative questions to the Supreme Court of Texas regarding the interpretation of state insurance laws in the instant case.

For the complete opinion, please see
http://www.ca5.uscourts.gov/op...2/12-30230-CV1.wpd.pdf.

Panel: Circuit Judges Jolly, Benavides, and Higginson

Argument Date: 12/3/2012

Date of Issued Opinion: 8/29/2013

Docket Number: No. 12-30230

Decided: Previous opinion withdrawn; questions certified to Texas Supreme Court

Case Alert Author: Barira Munshi

Counsel: Michael John Maloney, Maloney, Martin & Associates, for Plaintiff - Appellee Ranger Insurance, Ltd.; Steven Lynn Roberts, Sutherland Asbill & Brennan, L.L.P., for Intervenor Plaintiff - Appellee Transocean; David B. Goodwin, Covington & Burling, L.L.P., for Defendant - Appellant BP, P.L.C.; Richard N. Dicharry, Phelps Dunbar, L.L.P., for Plaintiff - Appellee Certain Underwriters at Lloyds London.

Author of Opinion: Judge Jolly

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 08/30/2013 11:02 AM     5th Circuit     Comments (0)  

July 30, 2013
  In re Application of the U.S.A. for Historical Cell Site Data - Fifth Circuit
Headline: Fifth Circuit Upholds the Government's Authority to Obtain Cell Phone Location Data Without Demonstrating Probable Cause.

Area of Law: Constitutional law.

Issue Presented: Whether the Stored Communications Act violates the Fourth Amendment to the extent that it permits the government to obtain a court order compelling cell phone service providers to produce specific subscribers' historical cell site information without a showing of probable cause.

Brief Summary: The U.S. government sought court orders compelling cell phone service providers to turn over sixty days of cell site data on specific cell phones as evidence in ongoing criminal investigations. That data does not reveal the contents of any phone calls but does show the location of the phone when a call is made. The government proceeded under § 2703(d) of the Stored Communications Act (SCA), which allows the government to obtain such information without showing probable cause. The U.S. District Court for the Southern District of Texas denied the government's applications. The court reasoned that the SCA violated the Fourth Amendment because the SCA compelled production of the information without requiring the government to show probable cause, as it would ordinarily need to do in order to obtain a search warrant.

On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the district court's decision and instructed the district court to grant the government's applications. The Fifth Circuit held that § 2703(d) orders to obtain historical cell site information for specified cell phones are not categorically unconstitutional. The court reasoned that cell site data are business records maintained by the phone companies, and users know that they convey information about their location to their service providers when making calls and that they do so voluntarily. Thus, the court concluded, the government need not show probable cause as is usually required for a search warrant.

Significance: This case arises at the intersection of modern communications technology, government surveillance, and personal privacy. This decision also creates a circuit split. The Third Circuit has held that the SCA gives a judge the discretion to require a warrant supported by probable cause, even when the more lenient statutory requirements have been met.

Extended Summary: The U.S. government sought court orders compelling cell phone service providers to turn over sixty days of cell site data on three specific cell phones as evidence in ongoing criminal investigations. That data does not reveal the contents of the phone calls but does show the location of the phone when a call is made. The government proceeded under § 2703(d) of the Stored Communications Act (SCA), which allows the government to obtain such non-content information without showing probable cause and without obtaining a search warrant. The U.S. District Court for the Southern District of Texas held that the SCA's authorization of such orders for cell site information violated the Fourth Amendment to the Constitution and denied the government's applications. The court reasoned that the SCA violated the Fourth Amendment because the SCA compelled production of the information based on a showing of "specific and articulable facts" rather than the higher standard of probable cause that the Fourth Amendment requires to obtain a warrant.

On appeal, the U.S. Court of Appeals for the Fifth Circuit first considered arguments (raised by an amicus) that the case was not ripe until the government actually executed a search authorized by a § 2703(d) order. The court disagreed, reasoning that it did not need a concrete factual record in order to review the district court's holding that such orders are categorically unconstitutional. Turning to the merits, the Fifth Circuit held that § 2703(d) orders to obtain historical cell site information for specified cell phones at the times at which users place and terminate calls are not categorically unconstitutional. The court reasoned that cell site data are business records that service providers collect for their own operational purposes. Further, the court explained that users know that they convey information about their location to their service providers when making calls and that they do so voluntarily. The Fifth Circuit vacated the district court's order and remanded the case with instructions to grant the government's applications. The court pointed out that its holding was narrow in that it concerned historical data on specific phones; the case did not concern records of all phones connected to a particular cell tower, and it did not involve installation of government tracking devices.

Judge Dennis dissented. He would have read the statute as requiring a showing of probable cause to obtain the location data, thus avoiding the difficult constitutional question of whether a lesser standard is permissible.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-20884-CV0.wpd.pdf.

Panel: Circuit Judges Reavley, Dennis, and Clement

Argument Date: 10/02/2012

Date of Issued Opinion: 07/30/2013

Docket Number: No. 11-20884

Decided: Vacated and remanded

Case Alert Author: Deena Herndon-Remy

Counsel: Nathan Paul Judish, U.S. Department of Justice, for Appellant U.S.A.

Author of Opinion: Judge Clement (Judge Dennis dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/30/2013 11:06 PM     5th Circuit     Comments (0)  

July 23, 2013
  Villas at Parkside Partners v. City of Farmers Branch, Texas - Fifth Circuit
Headline: Fifth Circuit Strikes Down Municipal Ordinance that Restricted Rental Housing Based on Immigration Status.

Area of Law: Immigration, preemption.

Issue Presented: Whether a local ordinance that prohibited occupancy in rental housing by persons without lawful immigration status is preempted by federal law.

Brief Summary: The City of Farmers Branch, Texas, enacted a municipal ordinance that requires persons who occupy rental housing within the city to obtain an occupancy license. License applicants must declare that they are U.S. citizens or nationals or, if they are not, provide an identification number that establishes their lawful presence in the United States. The city building inspector uses that information to attempt to verify with the U.S. government that the applicant is lawfully present. The ordinance provides criminal penalties for persons who occupy rental housing without obtaining a license and for landlords who rent to persons without a license. The U.S. District Court for the Northern District of Texas held that the ordinance was preempted by federal law and enjoined its enforcement. The U.S. Court of Appeals for the Fifth Circuit initially affirmed and, after rehearing en banc, has now affirmed once more.

Significance: A number of states and cities across the country have enacted, or are considering enacting, laws that indirectly regulate immigration in various ways.

Extended Summary: The City of Farmers Branch, located near Dallas, Texas, enacted a municipal ordinance that requires persons who occupy rental housing within the city to obtain an occupancy license. Applicants for the license must declare under penalty of perjury that they are U.S. citizens or nationals or, if they are not, provide an identification number that establishes their lawful presence in the United States. The occupancy license is issued upon submission of the application, but the city building inspector then uses the information on the application to attempt to "verify with the federal government whether the occupant is an alien lawfully present in the United States." If the federal government's response regarding the renter's immigration status indicates (as interpreted by the building inspector) that the renter is not lawfully present, the building inspector revokes the occupancy license. The ordinance provides misdemeanor criminal penalties for those who occupy rental housing without obtaining a license and for landlords who rent to those without a license. Aggrieved parties are directed to seek judicial review of the building inspector's determinations in state court.

A group of lessors and lessees of rental property in Farmers Branch challenged the ordinance in federal court. The U.S. District Court for the Northern District of Texas held that the ordinance was preempted by federal law and enjoined its enforcement. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed. The en banc court then voted to rehear the case.

The en banc Fifth Circuit ruled that the ordinance is preempted and thus affirmed the district court. There were several opinions. The lead opinion, authored by Judge Higginson and joined by four other judges, relied on principles of conflict preemption, according to which state and local law is invalid if it interferes with the accomplishment of federal objectives. Rejecting the city's argument that its ordinance would merely involve concurrent enforcement of existing federal laws, Judge Higginson's opinion found instead that the ordinance's criminal prohibitions upset the balance struck by Congress regarding how best to enforce immigration law. Further, the ordinance's judicial-review provision is preempted because it allows state judges to make immigration classifications. Stripped of the criminal penalties and judicial-review provision, the rest of the licensing scheme cannot operate in a coherent way, and so the entire ordinance is invalid.

Although a total of nine of the fifteen participating judges believed that the ordinance was invalid, they were split between the five judges represented by the lead opinion and four judges who concurred in separate opinions that relied on somewhat different and broader grounds. Judge Higginson, author of the lead opinion, also added his own separate opinion stating that the ordinance was not field preempted and noting that the ordinance might suffer from other constitutional defects that were not before the court. Six judges (in opinions by Judge Owen and a jointly authored opinion by Judges Jones and Elrod) would have upheld the ordinance against the preemption challenge except for small portions of the judicial review provision, which they would sever from the rest of the ordinance.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...0/10-10751-CV1.wpd.pdf.

Panel: En banc

Argument Date: En banc argument on 9/19/2012

Date of Issued Opinion: 7/22/2013

Docket Number: No. 10-10751

Decided: Affirmed

Counsel: William A. Brewer III, Bickel & Brewer, for Plaintiff-Appellee Villas at Parkside Partners; Nina Perales, MALDEF, for Plaintiff-Appellee Valentin Reyes; Peter Michael Jung, Strasburger & Price, L.L.P., for Defendant-Appellee City of Farmers Branch.

Author of Opinion: Lead opinion by Judge Higginson (concurrence in the judgment by Judge Reavley, special concurrence by Judge Dennis, special concurrence by Judge Higginson, partial concurrence and partial dissent by Judge Owen, dissent by Judges Jones and Elrod).

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/23/2013 09:53 PM     5th Circuit     Comments (0)  

July 22, 2013
  United States ex rel. Vavra v. Kellogg Brown & Root, Inc. - Fifth Circuit
Headline: Fifth Circuit Rules that the Government Can Obtain Double Damages and Per-Occurrence Penalties Against Employers Based on Employees' Violations of the Anti-Kickback Act.

Area of Law: Anti-Kickback Act.

Issue Presented: Whether 41 U.S.C. § 55(a)(1) extends vicarious liability to an employer for the acts of its employees, and, if it does, whether the government's complaint sufficiently alleged such liability.

Brief Summary: Employees of Defendant-Appellee Kellogg Brown & Root, Inc. (KBR) allegedly accepted kickbacks from two companies angling to win subcontracts on KBR's prime contract to service American armed forces in military theaters across the globe. Intervenor-Appellant, the United States, seeks to hold KBR liable for the kickbacks under the Anti-Kickback Act (AKA), 41 U.S.C. §§ 51-58. The U.S. District Court for the Eastern District of Texas granted KBR's motion to dismiss, concluding that § 55(a)(1) does not provide for vicarious liability. The U.S. Court of Appeals for the Fifth Circuit reversed and remanded, holding that § 55(a)(1) does allow for vicarious liability and that the government in this case had sufficiently stated a claim.

Extended Summary: Allegedly, employees in KBR's transportation department accepted kickbacks (meals, drinks, golf outings, tickets to rodeo events, baseball games, football games, etc.) from counterparts in EGL and Panalpina (subcontractors of KBR). In return, EGL and Panalpina would obtain favorable treatment, such as being awarded new subcontracts despite faulty past performance. This civil action commenced when two private individuals brought a qui tam suit against KBR and individual employees for the kickback scheme. The government intervened in the case against KBR and filed its own complaint.

The U.S. District Court for the Eastern District of Texas granted KBR's motion to dismiss, concluding that § 55(a)(1) does not allow the government to allege vicarious liability. The District Court further noted that because the United States had not sufficiently alleged that KBR employees were acting for the corporation's benefit, imputation of vicarious liability is not appropriate in this case. The government appealed to the U.S. Court of Appeals for the Fifth Circuit.

The first issue before the Fifth Circuit was whether § 55(a)'s "recover from a person" language included business entities. The Fifth Circuit held that Congress defined "person" broadly in the AKA to include corporations and other business entities. Therefore, by § 55(a)'s plain terms, a corporate person, and not solely its individual employees, can be held liable under both subsections (a)(1) and (a)(2). Since § 55(a)(1) makes corporations liable for kickback activity, it requires attributing liability to corporate entities for that activity under a rule of vicarious liability. Congress's decision to provide for vicarious liability under both subsections does not render § 55(a)(2) superfluous, as argued by KBR. Under § 55(a)(1), the government must prove a "knowing[]" violation before it may obtain double damages and per-occurrence recoveries. Section 55(a)(2), which specifically refers to liability based on employees' conduct, requires no proof of "knowing" misconduct before allowing recovery of "a civil penalty equal to the amount of th[e] kickback."

The Fifth Circuit also explained that the AKA provision should not be read as providing for punitive damages, and that non-punitive federal statutes should generally be construed in harmony with the common law "apparent authority" rule for attributing vicarious liability unless Congress signals its intent to adopt a different approach. Therefore, rejecting KBR's arguments, the Fifth Circuit held that the common law rules of vicarious liability apply to the AKA, there is no heightened proof requirement, apparent authority is enough to hold an employer vicariously liable, and that the government has sufficiently stated a claim.

Accordingly, the Fifth Circuit reversed and remanded, holding that § 55(a)(1) does allow for vicarious liability and that the government has clearly stated a claim.

Judge Jolly's opinion concurring in the judgment agreed that a remand was proper but emphasized that § 55(a)(1) requires that the defendant act "knowingly." In his view, the majority did not give sufficient attention to that limitation and thus failed to provide the district court with adequate guidance for the proceedings on remand.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...2/12-40447-CV0.wpd.pdf.

Panel: Circuit Judges Jolly, Benavides, and Higginson

Argument Date: 12/04/2012

Date of Issued Opinion: 07/19/2013

Docket Number: No. 12-40447

Decided: Reversed and remanded

Case Alert Author: Kirsty Davis

Counsel: Melissa Nicole Patterson, U.S. Department of Justice, for Intervenor - Appellant United States; Marie Roach Yeates, Vinson & Elkins, L.L.P., for Defendant-Appellee Kellogg Brown & Root.

Author of Opinion: Judge Higginson (Judge Jolly concurring in the judgment)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/22/2013 09:41 PM     5th Circuit     Comments (0)  

July 18, 2013
  Asadi v. G.E. Energy (USA), L.L.C. - Fifth Circuit
Headline: Fifth Circuit Rules that the Dodd-Frank Whistleblower-Protection Provision Does Not Apply to Employees who Report Suspected Wrongdoing Only Internally.

Area of Law: Securities; Whistleblower-Protection.

Issue Presented: Whether an individual may seek relief under 15 U.S.C. § 78u-6(h), the Dodd-Frank whistleblower-protection provision, when the individual's report of suspected wrongdoing is not made to the Securities and Exchange Commission.

Brief Summary: Asadi filed a complaint alleging that G.E. Energy (USA), L.L.C. (GE Energy) violated the whistleblower-protection provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78u-6(h), by terminating him after he made an internal report of a possible securities law violation. The U.S. District Court for the Southern District of Texas granted GE Energy's motion to dismiss for failure to state a claim. The U.S. Court of Appeals for the Fifth Circuit affirmed, holding that Asadi was not a "whistleblower" under Dodd-Frank because the plain language of the Dodd-Frank whistleblower-protection provision creates a private cause of action only for individuals who provide information to the SEC.

Extended Summary: According to the allegations of his complaint, Asadi, the Iraq Country Executive for GE Energy, was informed by Iraqi officials of their concern that GE Energy hired a woman closely associated with a senior Iraqi official to curry favor with that official in negotiating a lucrative joint venture agreement. Asadi reported the issue to his supervisor and to the GE Energy ombudsperson for the region, because he was concerned this violated the Foreign Corrupt Practices Act (FCPA). Shortly following, Asadi received a negative performance review. GE Energy allegedly pressured Asadi to step down from his role as Iraq Country Executive and accept a reduced role in the region. Asadi did not comply and GE Energy fired him.

Asadi filed a complaint alleging that GE Energy violated Dodd-Frank's whistleblower-protection provision by terminating him following his internal reports of the possible FCPA violation. GE Energy moved to dismiss Asadi's complaint because (1) Asadi does not qualify as a "whistleblower" under the whistleblower-protection provision, and (2) the whistleblower-protection provision does not apply extraterritorially. The district court dismissed Asadi's whistleblower-retaliation claim with prejudice, concluding that the whistleblower-protection provision "does not extend to or protect Asadi's extraterritorial whistleblowing activity." Asadi appealed to the U.S. Court of Appeals for the Fifth Circuit.

The argument on appeal focused on whether Asadi qualified as a protected whistleblower. Asadi contended that the whistleblower-protection provision should be construed to protect individuals who take actions described within the section, even if they do not provide information to the SEC. Asadi argued that he should be protected because of a conflict between the narrow statutory definition of "whistleblower," which refers to "any individual who provides . . . information . . . to the Commission," and the third category of protected activity, § 78u-6(h)(1)(A)(iii), which does not necessarily require disclosure of information to the SEC. Asadi also maintained that the Fifth Circuit should defer to the SEC's regulation construing the Dodd-Frank whistleblower-protection provision, which adopts his suggested construction and expands the meaning of a "whistleblower" beyond the statutory definition.

Affirming the District Court's dismissal, the Fifth Circuit held that under Dodd-Frank's plain language and structure there is no conflict and that Congress's intent was clear and unambiguous, that there is only one category of whistleblowers: individuals who provide information relating to a securities law violation to the SEC. The three categories listed in § 78u-6(h)(1)(A) represent the protected activity in a whistleblower-protection claim, but they do not define which individuals qualify as whistleblowers. The Fifth Circuit noted that if they were to accept Asadi's construction of the whistleblower-protection provision, the Sarbanes-Oxley Act's anti-retaliation provision would, for practical purposes, be rendered moot.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...2/12-20522-CV0.wpd.pdf.

Panel: Circuit Judges Elrod and Higginson and District Judge Jackson

Argument Date: 06/05/2013

Date of Issued Opinion: 07/17/2013

Docket Number: No. 12-20522

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Ronald Edward Dupree, Jr., Dupree Law Firm, for Plaintiff-Appellant; Linda L. Addison, Fulbright & Jaworski L.L.P., for Defendant-Appellee.

Author of Opinion: Judge Elrod

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/18/2013 12:54 PM     5th Circuit     Comments (0)  

July 12, 2013
  10 Ring Precision, Inc. v. Jones - Fifth Circuit
Headline: Fifth Circuit Upholds the ATF's Authority to Collect Information on Gun Purchases from Gun Dealers in Border States.

Area of Law: Administrative law.

Issue Presented: Whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives had statutory authority to issue demand letters seeking information on multiple-gun purchases from federal firearms licensees in Arizona, California, New Mexico, and Texas.

Brief Summary: The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued demand letters in July 2011 to all federal firearms licensees (FFLs) classified as a dealer or pawnbroker located in Arizona, California, New Mexico, and Texas to assist in its efforts to combat the illegal trafficking of firearms from the U.S. into Mexico. The letters required the FFLs to report to ATF whenever they make multiple sales of certain semiautomatic rifles to the same person. Some of the letter recipients filed suit and argued that the ATF lacked statutory authority to send the letter, and alternatively, if the ATF did have authority, that its decision regarding which FFLs to target was arbitrary and capricious. The U.S. District Court for the Western District of Texas granted summary judgment in favor of the ATF, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The Fifth Circuit ruled that the ATF had statutory authority to issue the letters under 18 U.S.C. § 923(g)(5)(A) and that the agency's decision regarding which dealers to target had a rational basis in the administrative record.

Extended Summary: The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued demand letters in July 2011 to all federal firearms licensees (FFLs) classified as a dealer or pawnbroker located in Arizona, California, New Mexico, and Texas to assist in its efforts to combat the illegal trafficking of firearms from the U.S. into Mexico. The letters required the FFLs to report to ATF whenever "at one time or during any five consecutive business days, [they] sell or otherwise dispose of two or more semi-automatic rifles capable of accepting a detachable magazine and with a caliber greater than .22 (including .223/5.56 caliber) to an unlicensed person." Some of the letter recipients filed suit and argued that the ATF lacked statutory authority to send the letter, and alternatively, if the ATF did have authority, that its decision regarding which FFLs were to receive the letter was arbitrary and capricious. The U.S. District Court for the Western District of Texas granted summary judgment in favor of the ATF, and the U.S. Court of Appeals for the Fifth Circuit affirmed.

The ATF relied on 18 U.S.C. § 923(g)(5)(A), a part of the Firearms Owners' Protection Act of 1986 (FOPA) that amended the Gun Control Act of 1968 (GCA), as its authority to issue the demand letters. ATF research had shown that the tracing of firearms is important to its firearms trafficking investigations and that Arizona, California, and Texas were the most prolific states for trafficking. In 2009, the General Accountability Office (GAO) released a report stating that the lack of reporting of multiple sales for long guns posed a challenge to the ATF and that multiple sales or purchases of firearms by a non-licensee was a significant firearms trafficking indicator. Then, in 2010, the Office of the Inspector General (OIG) recommended that the ATF find a way to obtain information that would improve its investigative ability. In response, the ATF submitted a proposal, which went through the appropriate notice and comment process, and, as a result, the ATF issued the demand letters in July 2011.

Addressing the appellant's first issue of the ATF lacking statutory authority to issue the demand letters, the Fifth Circuit reasoned that the ATF had statutory authority because 18 U.S.C. § 923(g)(5)(A) permits the government to demand information that firearms licensees are required to collect and the letters did not request any additional information. The court further explained that §§ 923(g)(1)(A), 923(g)(1)(B), 923(g)(3)(A), and 923(g)(7) did not limit the ATF's authority to issue the letters; the letters did not run afoul of § 926(a), which prohibits establishment of a national firearms registry; and the Consolidated and Continuing Appropriations Act of 2012 rider allowed for some specific collection of firearm transaction records. Addressing the appellant's second issue that the ATF's decision regarding which FFLs were to receive the letter was arbitrary and capricious, the Fifth Circuit reasoned that a rational connection existed between the facts in the administrative record and the FFLs that were chosen to receive the letter and that the ATF was not required to consider all available alternatives to obtain the information it sought.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-50742-CV0.wpd.pdf.

Panel: Circuit Judges King, Higginbotham, and Clement

Argument Date: 04/02/2013

Date of Issued Opinion: 07/11/2013

Docket Number: No. 12-50742

Decided: Affirmed

Case Alert Author: Deena Herndon-Remy

Counsel: Richard E. Gardiner for Plaintiff-Appellant 10 Ring Precision, Inc.; Andre M. Landry III, Looper Reed & McGraw, for Intervenor Plaintiff-Appellant Betts; Michael S. Raab, Department of Justice, for Defendant-Appellee Jones

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/12/2013 10:21 PM     5th Circuit     Comments (0)  

July 2, 2013
  USA v. Long - Fifth Circuit
Headline: Fifth Circuit Allows Government to Seek Enhanced Sentence, Rejecting Defendant's Reliance on Alleged Promises Not Reflected in His Formal Plea Agreement.

Area of Law: Federal Sentencing, Plea Agreements.

Issue Presented: Whether a court, when considering which terms are included in a plea agreement, can consider extrinsic evidence in the form of an email exchange between the Government and defense counsel.

Brief Summary: In 2011 Scott Long pled guilty to a federal criminal charge pursuant to a written plea agreement containing a merger clause. Long contended that the Government agreed in a prior email exchange that it would not seek a leader/organizer sentencing enhancement pursuant to U.S.S.G. § 3B1.1(a), but the written plea agreement itself made no mention of this. The presentence report ("PSR") recommended the leader/organizer enhancement. The U.S. District Court for the Southern District of Texas denied Long's motion to enforce the plea agreement on the basis that the email exchange did not represent an extra promise precluding the Government from seeking a leader/organizer enhancement, and the court adopted the PSR's recommendations. Long appealed, asserting that the Government breached the plea agreement by supporting the leader/organizer sentencing enhancement recommended in the PSR. The U.S. Court of Appeals for the Fifth Circuit affirmed Long's sentence, holding that under general principles of contract law when an agreement is unambiguous the courts will not look beyond the four corners of the document, and that Long did not rely on the emails in pleading guilty.

Extended Summary: In 2011 Scott Long pled guilty to a federal criminal charge, pursuant to a written plea agreement containing a merger clause. Long contended that the Government agreed in a prior email exchange that it would not seek a leader/organizer sentencing enhancement pursuant to U.S.S.G. § 3B1.1(a), but the written plea agreement itself made no mention of the Government's stance as to a leader/organizer enhancement. The PSR included the enhancement. Long's counsel filed objections to the leader/organizer sentencing enhancement recommended in the PSR prior to sentencing. The Government stated in response that the PSR was accurate and that it had no objections. Long's counsel then filed a motion to enforce the agreement. At sentencing the Government stated that the written plea agreement represented the complete terms of the governing plea deal. Long's counsel conceded that the written plea agreement did not contain language precluding the Government from seeking a leader/organizer enhancement but contended that the actual wording in the plea agreement did not govern the issue. The U.S. District Court for the Southern District of Texas denied Long's motion to enforce the plea agreement on the basis that the email exchange did not represent an extra promise precluding the Government from seeking a leader/organizer enhancement. Before accepting Long's plea, the district court had asked Long whether there were any other promises or assurances that were made in an effort to persuade him to plead guilty that did not get written down in the plea agreement, or whether there was any "secret agreement out there someplace?" Long had responded in the negative. Consequently, the district court adopted the PSR's recommendations.

Long appealed, contending that the Government breached the plea agreement by supporting the leader/organizer sentencing enhancement recommended in the PSR and supporting it at sentencing. Long asserted that the email exchange was part of the plea agreement because it reasonably induced him to plead guilty. The U.S. Court of Appeals for the Fifth Circuit affirmed Long's sentence, holding that under general principles of contract law when an agreement is unambiguous the courts will not look beyond the four corners of the document. Long's case is distinguished from prior cases in which a cover letter attached to the plea agreement was incorporated into the plea. There are no cases in which a court has looked beyond a cover letter attached to a plea agreement. The record also demonstrates, through Long's statements in court at the sentencing, that Long did not rely on the email exchange in pleading guilty.

For the full opinion, please see:
http://www.ca5.uscourts.gov/op...1/11-20726-CR0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges Smith and Wiener

Argument Date: 03/05/2013

Date of Issued Opinion: 07/02/2013

Docket Number: No. 11-20726

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Amy Howell Alaniz for Plaintiff-Appellee United States of America; David Adler for Defendant-Appellant Long.

Author of Opinion: Chief Judge Stewart

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/02/2013 10:06 PM     5th Circuit     Comments (0)  

June 26, 2013
  USA v. Holy Land Foundation for Relief and Development - Fifth Circuit
Headline: Fifth Circuit Rules that Assets of Terrorist Organization Seized by the Government Under the Criminal Forfeiture Statute Are Not Available to Victims Seeking to Enforce a Judgment Against the Same Assets.

Area of Law: International Emergency Economic Powers Act, Terrorism Risk Insurance Act, criminal forfeiture.

Issue Presented: Whether the Terrorism Risk Insurance Act permits a judgment creditor to execute against assets restrained by the government in anticipation of forfeiture under 21 U.S.C. § 853.

Brief Summary: Appellees ("the Rubins") were victims of a Hamas terrorist attack. Defendant-Appellee Holy Land Foundation ("HLF") has been designated by the U.S. government as a terrorist organization that acts for or on behalf of Hamas. After obtaining a judgment against Hamas for damages resulting from the attack, the Rubins requested that a federal district court issue a writ of garnishment against the assets of Hamas and HLF. Although the court issued the writ, the Rubins could not execute against HLF's assets because those assets previously had been restrained under 21 U.S.C. § 853 to preserve their availability for criminal forfeiture proceedings pending in the Northern District of Texas. The Rubins filed a third-party petition under § 853(n) to assert their interests in the restrained assets and, in response, the government filed a motion to dismiss. The U.S. District Court for the Northern District of Texas denied the government's motion and vacated the preliminary order of forfeiture, holding that the Terrorism Risk Insurance Act of 2002 ("TRIA") allows the Rubins to execute against HLF's assets notwithstanding the government's forfeiture proceedings. The government appealed, and U.S. Court of Appeals for the Fifth Circuit held that the Rubins could not recover under either 21 U.S.C. § 853 or the TRIA.

Extended Summary: In 1997, the Rubins were victims of a Hamas terrorist attack. In 2002, the Rubins brought a lawsuit against Hamas, and they won a judgment in their favor in 2004.

In 2001, the Secretary of the Treasury determined that HLF acts for or on behalf of Hamas and designated it a "Specially Designated Terrorist" and a "Specially Designated Global Terrorist" under the International Emergency Economic Powers Act ("IEEPA"). By virtue of these designations, Hamas's and HLF's assets were "blocked." In 2004, shortly before the Rubins obtained their civil judgment, the government filed an indictment against HLF, which indicated the government's intent to seek forfeiture of "all property, real and personal, involved in the [alleged] money laundering or monetary transaction offenses, and all property traceable to such property." Four days prior to the Rubins' civil judgment, the government was issued a license by the Office of Foreign Assets Control authorizing it to pursue criminal forfeiture of HLF's assets, which had been blocked by the orders under the IEEPA in 2001. In 2009, after being found guilty of numerous crimes, HLF's assets were ordered forfeited to the government.

The Rubins filed a petition under 21 U.S.C. § 853(n), which permits third parties to assert an interest in forfeited property. They argued that they were entitled to enforce their civil judgment against HLF's assets under § 201 of the TRIA. The government moved to dismiss the Rubins' petition, the district court denied the government's motion on the ground that the TRIA trumped the criminal forfeiture laws, and the government appealed.

Under § 201(a) of the TRIA, assets are made available for attachment and execution if they are "blocked" under sections 202 and 203 of the IEEPA. The Rubins argued that the indictment and forfeiture demand had no legal effect on HLF's assets because they were blocked under the IEEPA. However, the applicable regulations provide an exception to the prohibition on transferring blocked property when that transfer is authorized by license. Here, the government obtained such a license, and the license further authorized the government to pursue "restraining orders" in order to preserve the assets for criminal forfeiture. The Fifth Circuit held that the government's restraining order became legally effective before the Rubins received a judgment in their favor. The Rubins could not execute against those assets under the TRIA because they were no longer blocked.

The Rubins further argued that the provisions of the TRIA trump the criminal forfeiture provisions of § 853 because § 201 of the TRIA requires its application "notwithstanding any other provision of law." The Fifth Circuit held that the "notwithstanding" clause can operate only to override conflicting statutes. As § 853 does not conflict with § 201 of the TRIA, the clause does not preclude the application of § 853. Also, since HLF's assets had already been restrained under § 853(e) at the time the Rubins received their judgment, the Rubins' right under the TRIA to execute against those funds never became effective and therefore did not create a conflict between the statutes.

Finally, the Rubins challenged the district court's jurisdiction to seize HLF's forfeitable assets. At the time the government initiated forfeiture proceedings against HLF's assets, many of those assets were in the custody of other federal courts because the Rubins had obtained writs of execution on the judgment against Hamas. The Fifth Circuit held that the Rubins were foreclosed from raising this argument because it is an impermissible third-party challenge to the forfeiture of HLF's assets under § 853(n). HLF is the only party that has standing to challenge the forfeitability of its assets. Even if HLF had brought a challenge to the forfeitability of its assets, that argument would be precluded by the terms of the criminal forfeiture statute.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-10535-CV0.wpd.pdf.

Panel: Circuit Judges Wiener, Clement, and Prado

Argument Date: 11/07/2012

Date of Issued Opinion: 06/25/2013

Docket Number: No. 11-10535

Decided: Reversed and remanded

Case Alert Author: Kirsty Davis

Counsel: Vijay Shanker, U.S. Department of Justice, for Plaintiff-Appellant U.S.A.; Ranjana Natarajan, University of Texas School of Law - Civil Rights Clinic, for Defendant-Appellee HLF; Nancy Hollander, Freedman Boyd Hollander Goldberg Ives & Duncan, for Defendant-Appellee Shukri Abu Baker; Linda Moreno for Defendant-Appellee Ghassan Elashi; Marlo Pfister Cadeddu, for Defendant-Appellee Mufid Abdulqader; Gregory Burke Westfall, Hill Gilstrap, P.C. for Defendant-Appellee Abdulrahman Odeh; David J. Strachman, McIntre, Tate & Lynch, L.L.P. for Appellees Jenny Rubin, Deborah Rubin, Daniel Miller, Abraham Mendelson, Stuart E. Hersch, Renay Frym, Noam Rozenman, Elena Rozenman, and Tzvi Rozenman.

Author of Opinion: Judge Clement

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 06/26/2013 09:56 PM     5th Circuit     Comments (0)  

June 14, 2013
  Ass'n of Taxicab Operators USA v. City of Dallas - Fifth Circuit
Headline: Fifth Circuit Rules that City Ordinance Conferring Privileges on CNG-Powered Taxicabs Is Not Preempted by the Clean Air Act.

Area of Law: Environmental law.

Issue Presented: Whether a city ordinance that allows taxicabs powered by compressed natural gas to cut ahead of other taxicabs in the queue for soliciting passengers at an airport creates an emissions standard preempted by the Clean Air Act.

Brief Summary: The Association of Taxicab Operators, USA (ATO), representing taxicabs in the Dallas and Fort Worth areas, sued the City of Dallas when the City passed an ordinance giving taxicabs powered by compressed natural gas (CNG) a head-of-the-line privilege before gasoline-powered taxicabs when soliciting passengers at Love Field, an airport in Dallas owned by the City and located in a nonattainment area for ozone. CNG taxicabs emit fewer air pollutants than other taxicabs. ATO claimed that the ordinance was preempted by the federal Clean Air Act and requested injunctive relief. The U.S. District Court for the Northern District of Texas dismissed the suit, and the U.S. Court of Appeals for the Fifth Circuit affirmed.

The Fifth Circuit held that the City's ordinance was not preempted by the Clean Air Act because it did not impose a "standard relating to the control of emissions" from new motor vehicles either on the ordinance's face or by its indirect effects. On its face, the ordinance's language does not require the use of CNG technology but instead provides an incentive that encourages its use. The only enforcement created by the ordinance is compliance with the head-of-the-line privilege and its related procedures. Also, the ordinance's indirect effects do not create a mandatory standard because taxicabs have alternatives available to them (i.e., working in other areas of the City) to recoup any loss of income created by the ordinance. The ordinance's effects do not force non-CNG taxicabs to convert to CNG technology.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-10470-CV0.wpd.pdf.

Panel: Circuit Judges Jones, Dennis, and Higginson

Argument Date: 02/07/2013

Date of Issued Opinion: 06/13/2013

Docket Number: No. 12-10470

Decided: Affirmed

Case Alert Author: Deena Herndon-Remy

Counsel: Kelly Dean Hollingsworth, Travis, Calhoun & Conlon, P.C., for Plaintiff-Appellant Ass'n of Taxicab Operators USA; Barbara Elaine Rosenberg, City Attorney's Office, for Defendant-Appellee City of Dallas

Author of Opinion: Judge Higginson

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 06/14/2013 09:22 PM     5th Circuit     Comments (0)  

May 31, 2013
  Juino v. Livingston Parish Fire District No. 5 - Fifth Circuit
Headline: Fifth Circuit Rules that Volunteer Firefighter Cannot Sue Under Title VII for Workplace Harassment.

Area of Law: Employment Discrimination.

Issue Presented: Whether a volunteer firefighter who does not receive a salary but receives incidental benefits can be considered an employee and obtain relief under Title VII of the Civil Rights Act of 1964.

Brief Summary: Rachel Juino, a volunteer firefighter, sued the Livingston Parish Fire District No. 5, a political subdivision of the state of Louisiana, claiming sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Juino claimed that she was subjected to sexual harassment multiple times by a fellow firefighter and that no disciplinary action was taken against him. The U.S. District Court for the Middle District of Louisiana dismissed the suit, and the U.S. Court of Appeals for the Fifth Circuit affirmed.

The Fifth Circuit held that Juino was not an "employee" within the meaning of Title VII. Under Title VII, it is illegal "for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." Furthermore, an "employee" under Title VII is defined as "an individual employed by an employer." Because this definition is circular, the court looked to common law doctrine to help define it, and as a matter of first impression, the court adopted the threshold-remuneration test. The court reasoned that Juino did not meet the threshold for remuneration for receiving incidental benefits of $2.00 per fire/emergency call, a life insurance policy, a full firefighter's uniform and badge, firefighting and emergency response gear, and firefighting and emergency first-response training. The court also stated that providing a remedy for plaintiffs in Juino's position under Title VII was in the legislature's realm and not its own.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-30274-CV0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges Smith and Wiener

Argument Date: 03/04/2013

Date of Issued Opinion: 05/30/2013

Docket Number: No. 12-30274

Decided: Affirmed

Case Alert Author: Deena Herndon-Remy

Counsel: Winston G. DeCuir, Jr., DeCuir, Clark & Adams, L.L.P., for Plaintiff-Appellant Juino; Henry DuPont Heck Olinde, Jr., Olinde & Mercer, L.L.C., for Defendant-Appellee Livingston Parish Fire District No. 5

Author of Opinion: Chief Judge Stewart

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 05/31/2013 08:48 PM     5th Circuit     Comments (0)  

  Equal Employment Opportunity Commission v. Houston Funding II, Ltd. - Fifth Circuit
Headline: Fifth Circuit Rules that Discharging a Female Employee Because She Is Lactating or Expressing Breast Milk Constitutes Sex Discrimination.

Area of Law: Title VII of the Civil Rights Act of 1964; Pregnancy Discrimination Act.

Issue Presented: Whether discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII and the Pregnancy Discrimination Act.

Brief Summary: The Equal Employment Opportunity Commission ("EEOC"), on behalf of Donnicia Venters, sued Houston Funding II, Ltd. and Houston Funding Corp. ("Houston Funding") for unlawfully discharging Venters because she was lactating and wanted to express milk at work. The U.S. District Court for the Southern District of Texas granted summary judgment for Houston Funding, holding that, as a matter of law, discharging a female employee because she is lactating or expressing milk does not constitute sex discrimination. On appeal, the U.S. Court of Appeals for the Fifth Circuit held that discriminating against a woman who is lactating or expressing breast milk constitutes sex discrimination under Title VII and that lactation is a medical condition related to pregnancy for purposes of the Pregnancy Discrimination Act. The Fifth Circuit found that the EEOC had stated a prima facie case and had further proffered evidence showing that Houston Funding's stated reason for discharging Venters (job abandonment) was pretextual. The Fifth Circuit noted that the record at this point does not involve a demand for special accommodations to allow pumping breast milk at work, and the court did not hold that Venters would be entitled to such accommodations. The Fifth Circuit vacated the judgment of the district court and remanded for further proceedings.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-20220-CV0.wpd.pdf.

Panel: Circuit Judges Jolly, Jones, and Graves

Argument Date: 11/06/2012

Date of Issued Opinion: 05/30/2013

Docket Number: No. 12-20220

Decided: Vacated and remanded

Case Alert Author: Kirsty Davis

Counsel: Susan L.P. Starr for Plaintiff-Appellant Equal Employment Opportunity Commission; Mark Joseph Oberti, Oberti Sullivan, L.L.P., for Defendant-Appellees Houston Funding II, Ltd. and Houston Funding Corp.

Author of Opinion: Judge Jolly (Judge Jones concurring in the judgment)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 05/31/2013 11:16 AM     5th Circuit     Comments (0)  

May 13, 2013
  ACS Recovery Services, Inc. v. Griffin - Fifth Circuit
Headline: En Banc Fifth Circuit Rules that Employer-Sponsored Health Insurance Plan May Obtain Reimbursement of Medical Expenses from Employee's Special Needs Trust.

Area of Law: ERISA

Issue Presented: Whether a fiduciary seeks permissible equitable relief under ERISA § 502(a)(3)(B) when it pursues reimbursement for previously paid medical expenses from an employee's Special Needs Trust.

Brief Summary: Two ERISA plan fiduciaries filed suit against an employee, the employee's ex-wife, the employee's Special Needs Trust, and the employee's brother in the U.S. District Court for the Eastern District of Texas. The fiduciaries sought reimbursement, pursuant to the terms of the plan, for past medical expenses paid by the plan after the employee settled a tort lawsuit against the parties responsible for his injuries. The district court ruled against the fiduciaries with respect to every party. The fiduciaries appealed, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The fiduciaries then sought and obtained en banc review. The Fifth Circuit, sitting en banc, held that the fiduciaries could sue the Special Needs Trust because the terms of the plan created an equitable lien by agreement that attached to the settlement proceeds.

Extended Summary: Larry Griffin was injured in an automobile accident while he was employed by FK Industries, Inc. The company's healthcare plan paid Griffin's medical expenses. Subsequently, Griffin filed suit against the third parties responsible for his injuries. When Griffin filed suit, ACS Recovery Services, Inc., the healthcare plan administrator, informed Griffin's lawyer that the plan had a first lien upon any recovery in order to reimburse the plan for medical expenses previously paid on Griffin's behalf. Griffin's tort lawsuit then settled. Griffin's lawyer attempted to legally avoid the plan's equitable lien. He did so by arranging for the tort defendant's insurer to purchase an annuity. That annuity made monthly payments to a statutory Special Needs Trust. The trust, with Griffin's brother serving as trustee, then made monthly payments to Griffin.

FK Industries and ACS filed suit as ERISA plan fiduciaries against Griffin, his ex-wife, his brother, and the Special Needs Trust in the U.S. District Court for the Eastern District of Texas. The fiduciaries sought a constructive trust upon settlement funds sufficient to reimburse the plan. The district court, approving a magistrate judge's report and recommendation, rejected the fiduciaries' claims for relief. Specifically, the court denied the fiduciaries' motion for summary judgment and granted the trust's cross motion for summary judgment. The fiduciaries then appealed to the U.S. Court of Appeals for the Fifth Circuit. After a Fifth Circuit panel affirmed the district court, the fiduciaries obtained en banc review.

The en banc court concluded that the fiduciaries sought "appropriate equitable relief" from the trust under ERISA § 502(a)(3)(B) because the terms of the plan created an equitable lien by agreement. Griffin's healthcare plan expressly provided itself with a first lien to repay medical expenses upon any recovery from a third party. Griffin then recovered from a third party when he approved the settlement. As soon as Griffin approved the settlement, an equitable lien by agreement attached to the proceeds of the settlement. Based on Supreme Court precedent, enforcement of a lien by agreement is a form of appropriate equitable relief under ERISA § 502(a)(3)(B). Accordingly, the district court erred and the en banc court rendered judgment to that effect.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-40446-CV2.wpd.pdf.

Panel: En Banc

Argument Date: 09/19/2012

Date of Issued Opinion: 05/07/2013

Docket Number: No. 11-40446

Decided: Reversed in part, affirmed in part, and remanded

Case Alert Author: Louis Holzer

Counsel: David Alan Belofsky, David A. Belofsky & Associates, Ltd., for Plaintiffs-Appellants ACS Recovery Services, Inc. and FKI Industries, Inc. Leland Alan Reinhard, for Defendants-Appellees Larry Griffin, Willie Earl Griffin, and Larry Griffin Special Needs Trust. Laura D. Schmidt, Downs & Stanford, P.C., for Amicus Curiae National Association of Subrogation Professionals. David I. Schiller, Gibson, Dunn, & Crutcher, L.L.P., for Amicus Curiae IBEW-NECA Southwestern Health and Benefit Fund.

Author of Opinion: Judge Jones, joined by Chief Judge Stewart and Judges Jolly, Davis, Smith, Clement, Owen, Southwick, Graves, and Higginson (Judge Prado, concurring in part and dissenting in part; Judge Haynes, joined by Judges Reavley, Dennis, and Elrod, concurring in part and dissenting in part).

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 05/13/2013 11:39 PM     5th Circuit     Comments (0)  

May 10, 2013
  Ainsworth v. Moffett Engineering, Ltd. - Fifth Circuit
Headline: Fifth Circuit Reaffirms its Stream-of-Commerce Personal Jurisdiction Test.

Area of Law: Civil Procedure

Issue Presented: Whether the Fifth Circuit's stream-of-commerce test to determine if a foreign manufacturer may be sued in the United States was overruled by the Supreme Court's recent opinion in J. McIntyre Machinery, Ltd. v. Nicastro.

Brief Summary: An Irish forklift manufacturer and its U.S. distributor were sued for wrongful death in the U.S. District Court for the Southern District of Mississippi. The manufacturer filed a motion to dismiss for lack of personal jurisdiction, which the district court denied. On appeal before the U.S. Court of Appeals for the Fifth Circuit, the manufacturer argued that the Fifth Circuit's stream-of-commerce test for personal jurisdiction, the test that the district court relied upon, had been overruled by the Supreme Court's recent opinion in J. McIntyre Machinery, Ltd. v. Nicastro. The Fifth Circuit disagreed. Accordingly, the court affirmed the district court and confirmed the continuing validity of its stream-of-commerce test.

Significance: The Fifth Circuit joins the Federal Circuit in viewing Justice Breyer's concurrence as representing the holding of McIntyre.

Extended Summary: Mary P. Ainsworth, individually and on behalf of all wrongful death beneficiaries, filed a products liability and wrongful death suit against an Irish forklift manufacturer, Moffett Engineering, Ltd., and its exclusive distributor in the United States, Cargotec USA, Inc., in the U.S. District Court for the Southern District of Mississippi. Moffett filed a motion to dismiss the lawsuit for lack of personal jurisdiction. The district court denied the motion based on the U.S. Court of Appeals for the Fifth Circuit's stream-of-commerce test. Under the stream-of-commerce test, there is personal jurisdiction when the court "finds that the defendant delivered the product into the stream of commerce with the expectation that it would be purchased by or used by consumers in the forum state." Shortly thereafter, the Supreme Court issued its opinion in J. McIntyre Machinery, Ltd. v. Nicastro. Moffett then requested that the district court reconsider its denial of Moffett's motion to dismiss for lack of personal jurisdiction in light of McIntyre. The district court then reviewed McIntyre and concluded that it was not applicable.

In an interlocutory appeal before the Fifth Circuit, Moffett argued that McIntyre overruled the Fifth Circuit's version of the stream-of-commerce test. The Fifth Circuit rejected that argument because Moffett's argument incorrectly assumed that Justice Kennedy's plurality opinion in McIntyre was the holding. A plurality opinion, however, is not necessarily the holding of a case. When the Court issues a plurality opinion, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds."

The Fifth Circuit concluded that Justice Breyer's concurrence in McIntyre, and not Justice Kennedy's plurality opinion, was the controlling opinion in the case. Justice Kennedy's plurality opinion would allow personal jurisdiction only where a defendant targeted the forum state. Justice Breyer's concurrence relied upon the fact that a single isolated sale by a distributor was not sufficient to establish personal jurisdiction over a foreign manufacturer under the Supreme Court's prior precedents. The Fifth Circuit concluded that Justice Breyer's concurrence in McIntyre did not overrule the Fifth Circuit's stream-of-commerce test. The court further observed that Moffett, acting through its U.S. distributor, had sold more than two hundred forklifts and derived millions of dollars of revenue from sales in Mississippi over the course of a decade. Accordingly, the Fifth Circuit affirmed the district court.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-60155-CV0.wpd.pdf.

Panel: Circuit Judges Higginbotham, Smith, and Elrod

Argument Date: 01/08/2013

Date of Issued Opinion: 05/09/2013

Docket Number: No. 12-60155

Decided: Affirmed

Case Alert Author: Louis Holzer

Counsel: John G. Corlew, Corlew, Mumford & Smith, P.L.L.C., for Plaintiff-Appellee Mary P. Ainsworth. Allen C. Schlinsog, Reinhart Boerner Van Deuren, P.C., for Defendant-Appellant Moffett Engineering, Ltd.

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 05/10/2013 09:28 AM     5th Circuit     Comments (0)  

April 13, 2013
  United States v. Scruggs - Fifth Circuit
Headline: Fifth Circuit Denies Relief in Dickie Scruggs Fraud Case.

Area of Law: honest-services fraud, collateral review, subject matter jurisdiction, First Amendment

Issue Presented: Whether Scruggs's sentence should be vacated in light of a recent Supreme Court case addressing honest-services fraud and bribery.

Brief Summary: The appeal arises from a fraud and corruption case involving noted plaintiffs' attorney Richard F. "Dickie" Scruggs. Scruggs entered into a deal with a state judge, Robert DeLaughter, who was presiding over a case in which Scruggs was a party. The deal provided that DeLaughter would help Scruggs win the lawsuit if Scruggs recommended DeLaughter to a United States Senator for a federal judgeship. After the case settled, the details of their scheme were discovered and Scruggs was charged with aiding and abetting honest-services mail fraud. Scruggs pled guilty to this charge and was sentenced to seven years in prison.

After the United States Supreme Court ruled in Skilling v. United States that the honest-services theory of fraud applies only to bribery and kickback schemes, Scruggs filed a motion to vacate his sentence, alleging that the indictment did not charge him with bribery. The United States District Court for the Northern District of Mississippi denied Scruggs's motion, holding that he had procedurally defaulted on his claim by pleading guilty.

On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed. The Fifth Circuit rejected Scruggs's attempts to avoid the effect of his guilty plea and rejected his argument that the honest-services statute violates the First Amendment because it chills protected political speech.

Extended Summary: Richard F. "Dickie" Scruggs, a noted plaintiffs' attorney, entered into a deal with a county judge, Robert DeLaughter, who was presiding over a case involving Scruggs's fee-sharing disputes with previous co-counsel. In exchange for DeLaughter's help in assuring a victory in the lawsuit, Scruggs would pass along DeLaughter's name to his brother-in-law, United States Senator Trent Lott, who had some influence in recommending candidates for a federal district court judge position. Throughout the trial, DeLaughter ruled in Scruggs's favor on motions and advised Scruggs on the proper arguments to make and which motions to file. The case eventually settled, with DeLaughter participating in the settlement process and revealing to Scruggs his opponent's confidential settlement position.

The details of Scruggs and DeLaughter's arrangement were eventually discovered, and both parties were indicted for conspiracy to commit federal programs bribery and for aiding and abetting honest-services fraud. A superseding information was later filed, charging Scruggs with aiding and abetting honest-services mail fraud, detailing that Scruggs and DeLaughter participated in a scheme where Scruggs would recommend DeLaughter to Senator Lott. The information did not mention what DeLaughter would do for Scruggs in return. Scruggs pled guilty to the charge in this information and was sentenced to seven years in prison. The charges in the original indictment were dismissed.

After the United States Supreme Court ruled in an honest-services case, Skilling v. United States, that the statute applied only to bribery and kickback schemes, Scruggs filed a motion under 28 U.S.C. § 2255 to vacate his sentence. Scruggs claimed that he did not admit to bribing DeLaughter, because the count to which he pled guilty did not discuss DeLaughter's participation in the alleged scheme. The United States District Court for the Northern District of Mississippi denied Scruggs's motion, holding that he had procedurally defaulted on his claim by pleading guilty.

On appeal to the U.S. Court of Appeals for the Fifth Circuit, Scruggs argued that (1) the district court had no subject matter jurisdiction over Scruggs's case; (2) he qualifies for an exception to the procedural default rule that would ordinarily bar him from challenging his conviction; and (3) the honest-services statute is facially overbroad because it chills protected political speech.

First, Scruggs argued that because his information did not use the word "bribe," the district court had no authority to hear his criminal case. In rejecting this argument, the Fifth Circuit held that even if there were a defect in the information, the defect would only cause the information to be "factually insufficient" but would not have affected the court's power to hear the case.

Second, Scruggs sought an exception to the usual rule that a guilty plea forecloses one's right to challenge a conviction. He claimed that he has cause to present his appeal to a federal court now because Skilling was decided after his guilty plea. The Fifth Circuit rejected this argument, holding that Scruggs was free to challenge the statute, as Skilling did, and therefore he could not show cause to set aside the procedural default. The Fifth Circuit also addressed Scruggs's contention that he was actually innocent of honest-services fraud and rejected this contention, finding that Scruggs could not show actual innocence of the counts alleged in the original indictment, which included a bribery scheme between Scruggs and DeLaughter.

Lastly, Scruggs alleged that the honest-services statute violates the First Amendment if it "applies to bribes that take the form of political endorsements." The Fifth Circuit again rejected Scruggs's argument, stating that the honest-services statute is not likely to chill protected political speech.

Accordingly, the Fifth Circuit affirmed the district court's judgment denying relief.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-60423-CV0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges Smith and Wiener

Argument Date: 03/04/2013

Date of Issued Opinion: 4/12/2013

Docket Number: No. 12-60423

Decided: Affirmed

Case Alert Author: Julie Goodrich

Counsel: Robert Henry Norman, U.S. Attorney's Office, for Plaintiff-Appellee United States of America, and Edward D. Robertson, Jr., Bartimus, Frickleton, Robertson & Gorny, for Defendant-Appellant Richard F. Scruggs.

Author of Opinion: Judge Wiener

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/13/2013 02:43 PM     5th Circuit     Comments (0)  

April 2, 2013
  Garner v. Kennedy - Fifth Circuit
Headline: Fifth Circuit rules that inmates may grow short beards for religious reasons.

Area of Law: Constitutional law

Issue Presented: Whether a prison policy generally prohibiting inmates from wearing beards, even for religious reasons, is valid under the Religious Land Use and Institutionalized Persons Act.

Brief Summary: Willie Lee Garner is a prisoner in the custody of the Texas Department of Criminal Justice (TDCJ). Garner, a Muslim, said his religion requires him to grow a beard. However, TDCJ has a policy that generally prohibits inmates from growing beards. The U.S. District Court for the Southern District of Texas enjoined the policy to the extent it prohibited Garner from wearing a quarter-inch beard. On appeal, the U.S. Court of Appeals for the Fifth Circuit examined the policy to see if it violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA provides that the government shall not impose a substantial burden on an inmate's religious exercise unless it is the least restrictive means of furthering a compelling state interest. The Fifth Circuit found that TDCJ failed to produce evidence that prohibiting beards was the least restrictive means of furthering its interests in controlling prison costs and promoting security. Specifically, TDCJ had not studied the costs of allowing inmates to keep their beards, and it had not demonstrated prison guards would have any significant difficulty in recognizing inmates that grew a quarter-inch beard. Additionally, Garner effectively cross-examined witnesses and provided an expert witness to rebut TDCJ's claims. The Fifth Circuit accordingly affirmed the injunction against the policy.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-40653-CV0.wpd.pdf.

Panel: Circuit Judges Reavley, Prado, and Owen

Argument Date: 6/5/2012

Date of Issued Opinion: 4/2/2013

Docket Number: No. 11-40653

Decided: Affirmed

Case Alert Author: Ward Goolsby

Counsel: Russell Joe Manning, Hornblower Firm, for Plaintiff-Appellee. James Patrick Sullivan, Office of the Attorney General, for Defendant-Appellant.

Author of Opinion: Judge Owen

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 04/02/2013 09:35 PM     5th Circuit     Comments (0)  

March 21, 2013
  St. Joseph Abbey v. Castille - Fifth Circuit
Headline: Fifth Circuit Invalidates Louisiana Regulations Granting Funeral Homes the Exclusive Right to Sell Caskets.

Area of Law: Constitutional Law, Administrative Law

Issue Presented: Whether Louisiana's regulatory regime granting funeral homes an exclusive right to sell caskets survives rational-basis review under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Brief Summary: The U.S. Court of Appeals for the Fifth Circuit held that Louisiana's statutes and regulations restricting casket sales were unconstitutional because they violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The regulations at issue prohibited the intrastate sale of caskets to the public except through licensed funeral homes. The court found that the regulations violated the Fourteenth Amendment because they did not meet the minimum standard of "bearing a rational relation to a constitutionally permissible objective." The state failed to establish that the regulations were rationally related to a legitimate state interest in consumer protection or public safety. The regulations merely protected the funeral industry from competition, which the court deemed an inadequate justification.

Significance: The Fifth Circuit held that Louisiana's restriction on casket sales was unconstitutional.

Extended Summary: St. Joseph Abbey, an Abbey of the Benedictine Order of the Catholic Church in Louisiana, relies on income from St. Joseph Woodworks, a business organized to sell caskets made by the monks of St. Joseph Abbey directly to the public. The Woodworks, however, was operating in contravention of Louisiana law, which requires that all intrastate casket sales to the public be made only by a state-licensed funeral director at a state-licensed funeral home. The Woodworks neither employed a state-licensed funeral director nor was it a state-licensed funeral home. In December of 2007, the Louisiana Board of Embalmers and Funeral Directors, which enforces the relevant statutes and regulations, demanded that the Woodworks cease selling caskets to the public.

A few years later, the Abbey filed suit in the U.S. District Court for the Eastern District of Louisiana. The Abbey sought to enjoin the Board from further enforcing the casket regulations because those regulations violated the Fourteenth Amendment's Due Process and Equal Protection Clauses. After a bench trial, the district court found for the Abbey and enjoined the Board from further enforcing the regulations. The district court concluded that the regulations violated the Fourteenth Amendment because the Board failed to show a rational relationship between the regulations and any legitimate state interest. The Board then appealed.

U.S. Court of Appeals for the Fifth Circuit affirmed. The court began its analysis by holding that the goal of protecting an industry from competition is an inadequate justification for regulation, even under the lenient rational-basis test that applies to economic legislation. The court also rejected the Board's arguments that the regulations were rationally related to the legitimate state interests of protecting consumers and public health. The court found that the regulations were not rationally related to protecting consumers because funeral directors are supposed to help customers select a casket regardless of where they buy it; further, there was no evidence that the regulations were necessary to protect against the risk of abuses by third-party casket sellers. The court also found that the regulations were not rationally related to protecting public health because of the dearth of related regulations.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-30756-CV1.wpd.pdf.

Panel: Circuit Judges Higginbotham, Haynes, and Higginson

Argument Date: 06/07/2012

Date of Issued Opinion: 03/20/2013

Docket Number: No. 11-30756

Decided: Affirmed

Case Alert Author: Louis Holzer and Brandon Hindmarsh

Counsel: Scott G. Bullock, Institute for Justice, for Plaintiffs-Appellees St. Joseph Abbey & Mark Coudrain. Walter Rimmer Woodruff, Jr., Bopp Law Corporation, for Defendants-Appellants the Louisiana State Board of Embalmers and Funeral Directors.

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 03/21/2013 02:36 PM     5th Circuit     Comments (0)  

March 15, 2013
  Boudreaux v. Transocean Deepwater, Inc. - Fifth Circuit
Headline: Fifth Circuit declines to recognize new cause of action against seamen in maritime cases.

Area of Law: Maritime law, Admiralty law

Issue Presented: Whether an employer who establishes a defense to liability for work-related injuries by demonstrating that a seaman misrepresented relevant medical history in obtaining employment may automatically recover previously paid benefits in a counterclaim.

Brief Summary: Five months after being hired by Transocean Deepwater, Inc., seaman Wallace Boudreaux claimed his back was injured on the job and obtained benefits from Transocean. After several years, Boudreaux sued Transocean to obtain further benefits. Transocean discovered that Boudreaux had failed to disclose information about a previous back injury when he applied for employment, and this discovery provided a defense to liability under a rule known as the McCorpen doctrine. On this basis, the U.S. District Court for the Eastern District of Louisiana granted summary judgment to Transocean on Boudreaux's claim and also granted summary judgment to Transocean on its counterclaim for restitution of the past benefits. However, the United States Court of Appeals for the Fifth Circuit reversed, declining to hold that every successful McCorpen defense generates a cause of action permitting the employer to recover benefits previously paid to the seaman. The Court cited two reasons: first, recognizing the cause of action would be contrary to the purpose of maritime law, which is to protect seamen; and second, an employer who establishes the defense does not necessarily demonstrate the seaman possesses the same level of intent required for common law fraud. A dissenting judge would have recognized the employer's claim for restitution.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-30041-CV0.wpd.pdf.

Significance: The Fifth Circuit declined to recognize a new cause of action, even though the Ninth Circuit implicitly recognized it several years ago.

Panel: Circuit Judges Higginbotham, Clement, and Haynes

Argument Date: 12/04/2012

Date of Issued Opinion: 3/14/2013

Docket Number: No. 12-30041

Decided: Reversed and rendered

Case Alert Author: Ward Goolsby

Counsel: Wynn E. Clark for Plaintiff-Appellee Wallace Boudreaux. John Anthony Scialdone, Fowler Rodriguez Valdez-Fauli, for Defendant-Appellee Transocean Deepwater, Inc.

Author of Opinion: Judge Higginbotham (dissent by Judge Clement)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 03/15/2013 01:47 PM     5th Circuit     Comments (0)  

February 28, 2013
  Learmonth v. Sears, Roebuck and Co. - Fifth Circuit
Learmonth v. Sears, Roebuck and Co. - Fifth Circuit

Headline: Fifth Circuit Finds Mississippi's Statutory Cap on Noneconomic Damages Does Not Violate the Mississippi Constitution.

Area of Law: tort reform, personal injury, state constitutional law

Issue Presented: Whether Mississippi's statutory limitation of $1 million for noneconomic damages violates the Mississippi Constitution's jury trial guarantee and separation of powers provisions.

Brief Summary: A jury returned a general verdict of $4 million in compensatory damages for Lisa Learmonth against Sears, Roebuck and Co. in an automobile accident lawsuit. Sears filed a motion for either a remittitur - a reduction of the award - or a new trial on the basis that the award was excessive. Sears also requested that Mississippi Code § 11-1-60 be applied, which would limit Learmonth's noneconomic damages (damages arising from a variety of injuries such as "pain, suffering, loss of consortium and injury to reputation") to $1 million. The U.S. District Court for the Southern District of Mississippi determined that $2.2 million of the jury verdict was for noneconomic damages, and it reduced this amount to $1 million under § 11-1-60, although it denied Sears's motion for remittitur or new trial.

On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed. In doing so, the court rejected Learmonth's argument that § 11-1-60 violates the Mississippi Constitution's jury trial guarantee and separation of powers provisions.

Significance: Mississippi's cap on noneconomic damages is not unconstitutional under the Mississippi Constitution. The Mississippi Supreme Court had not previously ruled upon the question.

Extended Summary: Lisa Learmonth sued Sears, Roebuck and Co. for damages arising from an automobile accident. A jury returned a general verdict of $4 million in compensatory damages against Sears, but the verdict did not specify separate amounts for economic damages - such as past and future medical expenses and lost wage-earning capacity - and noneconomic damages - such as "subjective, nonpecuniary damages arising from death, pain, suffering, . . . mental anguish" and other losses. Sears filed a motion for either remittitur - a reduction of the award - or a new trial on the basis that the jury award was excessive. Sears also requested that Mississippi Code § 11-1-60 be applied, which would limit Learmonth's noneconomic damages to $1 million. The U.S. District Court for the Southern District of Mississippi divided up the $4 million verdict and estimated that $2.2 million of the jury verdict arose from noneconomic damages. This number was obtained from Sears's motion, and Learmonth used the same number in her arguments opposing remittitur or a new trial. The district court then reduced the $2.2 million amount to $1 million under § 11-1-60 and entered a judgment, although it denied Sears's motion for remittitur or new trial.

On appeal to the U.S. Court of Appeals for the Fifth Circuit, Sears argued that the award was excessive, and Learmonth cross-appealed, arguing that § 11-1-60 violates the Mississippi Constitution's jury trial guarantee and separation of powers provisions. The Fifth Circuit rejected Sears's argument and certified the constitutional question to the Mississippi Supreme Court, which declined to answer the question. The Mississippi Supreme Court stated that the stipulated $2.2 million in noneconomic damages was an invalid estimation because "it could not determine whether the 'trier of fact' had awarded Learmonth more than $1 million." Since this issue was left unclear, the state court declined to answer the constitutional question. Accordingly, the Fifth Circuit was left to determine the constitutional question for itself.

The Fifth Circuit addressed some of Learmonth's arguments that were made for the first time after the Mississippi Supreme Court decision, including (1) that a trial court is prohibited from applying § 11-1-60 unless the jury stated the exact amount of the noneconomic damages in the verdict, and (2) that § 11-1-60 violates the Mississippi Constitution's due process and remedy clause. The Fifth Circuit held that these arguments were waived because Learmonth had not properly raised and renewed them on appeal.

The Fifth Circuit did address Learmonth's argument that § 11-1-60 violates the jury trial guarantee in the Mississippi Constitution in that there is a right to (1) "have a jury alone find the proper compensatory damage amount" and (2) "have that factual finding converted, undisturbed, into a legally binding judgment of equal value." In considering these issues, the court explained the difference between a jury's verdict, which is a finding of fact and conclusion of law, and a court's judgment, which is "the pronouncement of that [verdict] and the act that gives it legal effect." The court determined that § 11-1-60 does not change a jury's factual damages determination in its verdict, but merely places a "legal limitation on the judgment that provides the remedy for a noneconomic injury," which the legislature is entitled to do under Mississippi law. Further, the court found that § 11-1-60 "does not invade the jury's factfinding process," and thus does not violate the Mississippi Constitution's jury trial guarantee.

Learmonth also argued that the statute violates the Mississippi Constitution's separation of powers provisions because it directly conflicts with remittitur, which is a judicial procedure. The Fifth Circuit rejected this argument because remittitur applies when a district court questions the jury's factual findings, but § 11-1-60 does not alter the jury's factual findings at all; rather, it is only "a non-discretionary limit on the permissibly legal remedy," which is the court's final judgment. The Fifth Circuit also held that the legislature has the authority to enact non-procedural laws that may affect a judicial function without upsetting the separation of powers, such as when the legislature defines a cause of action that "alters the elements a [fact finder] must consider to find liability."

Because the Fifth Circuit found that § 11-1-60 does not violate the Mississippi Constitution's jury trial guarantee or separation of powers provisions, the court affirmed the District Court's judgment.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...9/09-60651-CV0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges King and Owen

Argument Date: 12/07/2010

Date of Issued Opinion: 2/27/2013

Docket Number: No. 09-60651

Decided: Affirmed

Case Alert Author: Julie Goodrich

Counsel: Robert Kevin Hamilton, Hamilton Law Firm, P.L.L.C., for Plaintiff-Appellee Cross-Appellant Lisa Learmonth, and Francis A. Citera, Greenberg Traurig, L.L.P., for Defendant-Appellant Cross-Appellee Sears, Roebuck & Company.

Author of Opinion: Judge King

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 02/28/2013 11:20 AM     5th Circuit     Comments (0)  

  Western Real Estate Equities, L.L.C. v. Village at Camp Bowie I, L.P. - Fifth Circuit
Headline: Fifth Circuit affirms confirmation of Chapter 11 cramdown bankruptcy plan supported by "artificially impaired" unsecured creditor class over objections of secured creditor class.

Area of Law: Bankruptcy, Chapter 11

Issue Presented: Whether a Chapter 11 bankruptcy plan satisfies the requirements of §1129(a)(10) when the plan "artificially" impairs a class of creditors.

Brief Summary: Western Real Estate Equities purchased an overdue promissory note secured by real property owned by Village at Camp Bowie and instituted non-judicial foreclosure. Village then filed a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. Section 1129(a)(10) of the Bankruptcy Code prohibits a court from confirming a plan of reorganization unless "at least one class of claims that is impaired under the plan has accepted the plan." Village proposed a Chapter 11 reorganization plan in which a class of unsecured creditors were minimally impaired by a short delay in payment, even though sufficient funds existed in the plan to pay the unsecured debt in full immediately. The unsecured creditors approved and the bankruptcy court confirmed the cramdown plan over Western's objection that § 1129(a)(10) does not recognize approval by an "artificially" impaired class. Western appealed. The U.S. Court of Appeals for the Fifth Circuit affirmed, joining the Ninth Circuit in holding that § 1129(a)(10) does not distinguish between "artificially" and economically driven impairment. The Fifth Circuit expressly departed from the Eighth Circuit's contrary view. The Court observed that reorganization plans still have to comply with § 1129(a)(3)'s good faith requirement.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-10271-CV0.wpd.pdf.

Significance: The Circuits are divided on the interpretation of § 1129(a)(10).

Panel: Circuit Judges Higginbotham, Clement, and Haynes

Argument Date: 12/03/2013

Date of Issued Opinion: 02/26/2013

Docket Number: No. 12-10271

Decided: Affirmed

Case Alert Authors: Brandon Hindmarsh & Louis Holzer

Counsel: John Mark Chevallier, McGuire, Craddock & Strother, P.C., for Appellee Village at Camp Bowie I. John Robert Forshey, Forshey & Prostok, L.L.P., for Appellant Western Real Estate Equities.

Author of Opinion: Judge Higginbotham

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 02/28/2013 10:18 AM     5th Circuit     Comments (0)  

February 14, 2013
  Republic of Ecuador v. Connor - Fifth Circuit
Headline: Fifth Circuit Imposes Judicial Estoppel Against Chevron in Discovery Dispute with Republic of Ecuador

Area of Law: judicial estoppel, ancillary discovery

Issue Presented: Whether Chevron may claim that an arbitration proceeding under the US-Ecuador Bilateral Investment Treaty is not a "proceeding in a foreign or international tribunal" for purposes of avoiding discovery under 28 U.S.C. § 1782 when it has benefitted from asserting the contrary position repeatedly throughout related litigation.

Brief Summary: After a court in Ecuador issued a multi-billion dollar judgment against Chevron, Chevron filed for arbitration under the US-Ecuador Bilateral Investment Treaty (BIT). Throughout a long span of litigation, Chevron repeatedly sought discovery under 28 U.S.C. § 1782, which allows a district court to order a party to produce documents for use in a "proceeding in a foreign or international tribunal," by asserting that the BIT arbitration was an "international tribunal." However, when Ecuador requested discovery under § 1782 in this case, Chevron changed its argument to claim that the BIT arbitration was not an international tribunal, and the U.S. District Court for the Southern District of Texas denied Ecuador's request for discovery. On appeal, the U.S. Court of Appeals for the Fifth Circuit held that Chevron was judicially estopped and prevented from asserting that the arbitration is not an international tribunal, due to the repeated benefits it received from its prior opposing argument.

Extended Summary: An Ecuadorian court issued a multi-billion dollar judgment against Chevron Corporation as a result of environmental litigation. Under the US-Ecuador Bilateral Investment Treaty (BIT), Chevron filed for arbitration, asserting that the Ecuadorian trial resulted in a miscarriage of justice and that Ecuador's involvement in the litigation violated its rights.

Throughout the initial litigation and the BIT arbitration, Chevron and Ecuador have sought discovery under 28 U.S.C. § 1782, which allows a district court to order a party to produce documents for use in a "proceeding in a foreign or international tribunal." Chevron was granted many discovery requests, and Chevron repeatedly asserted that the BIT arbitration was an international tribunal. In this action, however, Chevron changed its argument in response to a § 1782 discovery request by Ecuador, and Chevron now claimed that the BIT arbitration was not an international tribunal. The U.S. District Court for the Southern District of Texas denied Ecuador's discovery request, and, on appeal, Ecuador asked the U.S. Court of Appeals for the Fifth Circuit to find that Chevron is judicially estopped from claiming the BIT arbitration is not an international tribunal due to its repeated assertions to the contrary.

Chevron argued to the Fifth Circuit that (1) its contrary position on a question of law is not amenable to judicial estoppel; (2) a prior Fifth Circuit opinion affords it a basis for a contrary legal argument; (3) Chevron did not benefit from its prior assertions that the BIT arbitration was an international tribunal; and, (4) the nature of the tribunal is a jurisdictional element of § 1782 that cannot be settled by estoppel.

After hearing oral arguments, the Fifth Circuit held that § 1782 has no jurisdictional element, but is a grant of authority to the federal courts. Further, the Fifth Circuit held that judicial estoppel is not barred from being applied to any question of law; rather, estoppel may apply where a party clearly asserts any contrary position, not just a factual position. Finally, the Fifth Circuit held that Chevron benefitted from its earlier claims that the BIT arbitration was an international tribunal, and that these claims were not irrelevant to the prior orders granting Chevron's discovery requests. As a result, the Fifth Circuit held that Chevron is judicially estopped from asserting the inconsistent position that the BIT arbitration is not an international forum. The court reversed the district court's decision and remanded for a determination of whether Ecuador's discovery request should be granted.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...2/12-20122-CV0.wpd.pdf.

Panel: Circuit Judges Davis, Jones, and Smith

Argument Date: 12/03/2012

Date of Issued Opinion: 2/13/2013

Docket Number: No. 12-20122 cons. w/ No. 12-20123

Decided: Reversed and Remanded

Case Alert Author: Julie Goodrich

Counsel: Gene C. Schaerr, Winston & Strawn, L.L.P., for Plaintiff-Appellants Republic of Ecuador and Diego Garcia Carrion. James C. Ho, Gibson, Dunn & Crutcher, L.L.P., for Defendant-Appellees John A. Connor and GSI Environmental, Inc., and Intervenor-Appellee Chevron Corporation.

Author of Opinion: Judge Jones

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 02/14/2013 11:57 PM     5th Circuit     Comments (0)  

January 29, 2013
  United States v. 0.073 Acres of Land - Fifth Circuit
Headline: Fifth Circuit denies compensation under the Takings Clause for lost assessments on condemned property

Area of Law: Property, eminent domain, constitutional law

Issue Presented: Whether a homeowner association's right to collect assessments on member properties is a compensable property interest for purposes of the Takings Clause of the Fifth Amendment.

Brief Summary: A homeowner association lost the right to collect assessments on several properties when the federal government condemned the properties in connection with a project to restore and improve a levee system. The association claimed that this loss constituted a taking under the Fifth Amendment and that it was owed just compensation. The U.S. Court of Appeals for the Fifth Circuit denied the compensation. The Court held that this intangible property right cannot be compensated because it is not directly connected to the substance of the thing taken. Instead, the association's right was a contractual right that was extinguished when the federal government exercised its eminent domain power.

Significance: This is a question of first impression in the Fifth Circuit.

Extended Summary: Mariner's Cove Townhomes Association, a homeowner association, collected assessments on properties in return for providing residential services. The obligation to pay these assessments was part of a covenant that ran with the land. After the neighborhood suffered substantial damage after Hurricane Katrina, the United States Army Corps of Engineers began to repair and rehabilitate the area. The Corps requested additional land for a pumping station, and fourteen of fifty-eight properties in the Association were condemned. As a result, the Association was deprived of its right to collect assessments on the condemned properties. The Association claimed this diminution in its assessment base constituted a taking for which it should be paid just compensation under the Fifth Amendment.

The Fifth Circuit denied compensation to the Association. First, the Court looked to Louisiana state law to determine that the right to collect assessments is a building restriction; therefore, it may be more generally viewed as a real covenant, which is a property interest. However, the Court held that the Consequential Loss Rule bars compensation. The rule only allows compensation for intangible interests if they are directly connected with the physical substance of the thing taken. In this case, the Court ruled that the Association's right was contractual and not directly connected to the land. When the federal government exercised its eminent domain power, such contractual rights were extinguished. The Court added that if it did not rule this way, the government's eminent domain power would be unjustifiably burdened.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-31167-CV0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges Owen and King

Argument Date: 12/04/2012

Date of Issued Opinion: 1/28/2013

Docket Number: No. 11-31167

Decided: Affirmed

Case Alert Authors: Ward Goolsby and Brandon Hindmarsh

Counsel: Tamara Nichelle Rountree, U.S. Department of Justice, for Plaintiff - Appellee United States. Henry Walsworth Kinney, III, Kinney, Ellinghausen, Richard & Deshazo, for Interested Party - Appellant Mariner's Cove Townhomes Association, Inc.

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 01/29/2013 08:08 PM     5th Circuit     Comments (0)  

January 10, 2013
  Center for Biological Diversity v. BP America Production Co. - Fifth Circuit
Headline: Fifth Circuit Dismisses as Moot Most of Environmental Group's Claims in Deepwater Horizon Litigation

Area of Law: Environmental; federal jurisdiction

Issue Presented: Whether claims for injunctive relief brought under the citizen-suit provisions of several environmental statutes (CERCLA, CWA, and EPCRA) were moot after the district court took judicial notice of the capping of the Macondo well site.

Brief Summary: The U.S. Court of Appeals for the Fifth Circuit upheld the U.S. District Court for the Eastern District of Louisiana's decision to dismiss as moot most of the Center for Biological Diversity's claims for injunctive relief related to the Deepwater Horizon oil spill of 2010. The district court took judicial notice of the fact that no more pollutants were being released into the Gulf of Mexico. Based on this finding, the plaintiff lacked standing because an injunction would not redress any injury - BP had already ceased operations at the Macondo well site at the direction of the federal government. However, the Fifth Circuit determined that the plaintiff's claim that the defendants had not complied with their duty to report substances already released into the Gulf was not moot. The Court therefore reversed the district court and ordered additional proceedings on this reporting issue.

Significance: This case concerns which claims can be pursued in the ongoing multidistrict litigation concerning the massive oil spill that occurred at the Macondo well site in the Gulf of Mexico. The case suggests limitations on the availability of further injunctive relief, but it does not address monetary relief.

Extended Summary: The U.S. Court of Appeals for the Fifth Circuit ruled that most of the Center for Biological Diversity's claims for injunctive relief were moot because the district court took judicial notice of the fact that no further pollutants could come from the Macondo well, which BP had capped at the direction of the federal government. The Fifth Circuit ruled that the capping of the well was a judicially noticeable fact and that the Center had an opportunity to challenge the finding but opted not to do so.

Without the prospect of further pollutant discharges, the Fifth Circuit deemed injunctive relief aimed at stopping statutory violations and reporting future discharges to be unnecessary to preventing further injury. The court also ruled that the Center could not save the case from mootness by seeking civil penalties, because the Center had demanded a final judgment from the district court in order to appeal the ruling on injunctive relief, thereby forfeiting its request for those penalties.

Finally, the Fifth Circuit reversed the district court on the issue of reporting substances already released into the Gulf, finding that claim not moot. Specifically, the Court determined that having all of the relevant information in one easily accessible, central location was the purpose of the CERCLA and EPCRA disclosure provisions. Although at least some of the relevant information was available at various places on the Internet, the Court determined that the current record did not conclusively demonstrate that all statutorily required disclosures had been made. Accordingly, the Court ordered additional proceedings on this reporting issue.

For the full opinion, please see: ftp://opinions.ca5.uscourts.go...9/12-30136-CV0.wpd.pdf

Panel: Chief Judge Stewart and Circuit Judges King and Owen.

Argument Date: 12/4/12

Date of Issued Opinion: 1/9/2013

Docket Number: No. 12-30136

Decided: Affirmed in part, reversed in part, and remanded for further proceedings

Case Alert Author: Ward Goolsby

Counsel: Charles M. Tebbutt for Plaintiff-Appellant Center for Biological Diversity; Richard Cartier Godfrey, Kirkland & Ellis, L.L.P., for Defendant-Appellee BP; Steven Lynn Roberts, Sutherland Asbill & Brennan, L.L.P., for Defendant-Appellee Transocean.

Author of Opinion: Judge King

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 01/10/2013 11:09 AM     5th Circuit     Comments (0)  

December 17, 2012
  United States v. McRae et al. - 5th Circuit
Headline: Fifth Circuit partly affirms and partly reverses convictions of New Orleans police officers charged with Katrina-related killing and cover-up

Area of Law: criminal; civil rights

Brief Summary: The federal government charged several New Orleans police officers in connection with the death of a man during the chaotic days following Hurricane Katrina's landfall. One officer was charged with unjustifiably killing the man, and other officers were charged with covering it up. Two of the officers were convicted by a jury on multiple counts, and they appealed. The U.S. Court of Appeals for the Fifth Circuit upheld some of their convictions but reversed others. A third defendant was initially convicted, but the trial judge then ordered a new trial. The government appealed that decision, and the Fifth Circuit affirmed. In sum, the Fifth Circuit's rulings return the case to the trial court for further proceedings involving all three of the defendants.

Extended Summary: In a case that garnered national media attention, federal prosecutors charged several New Orleans police officers with using excessive force in killing a man named Henry Glover and covering it up, all during the aftermath of Hurricane Katrina's devastation of New Orleans. The jury convicted David Warren of killing Glover and convicted Gregory McRae of later burning the car containing Glover's body. The jury convicted Travis McCabe of obstructing the investigation, though the district court vacated his conviction and ordered a new trial in light of new evidence. As detailed below, the Fifth Circuit affirmed in part and reversed in part.

Regarding Warren, who was charged with Glover's death, the Fifth Circuit held that the district court erred in denying Warren's request that his trial be severed from the trial of the officers accused of covering up Glover's death. The court observed that Warren had not been accused of playing a role in covering up the death and that the evidence presented against the other defendants was highly inflammatory and could have prejudiced the jury against Warren. The court accordingly vacated Warren's conviction and returned the case to district court for a new trial.

Regarding McRae, who was convicted on several counts related to the burning of Glover's body, the Fifth Circuit affirmed on some counts but reversed on one count in which McRae had been convicted of depriving Glover's family of the right to seek judicial redress for Glover's death. As to that count, the court held that there was insufficient evidence that any family member had been prevented from pursuing any particular lawsuit. Because it was unclear how the reversal of the conviction on that count would affect McRae's sentence for the other counts, the Fifth Circuit remanded to the district court for resentencing.

Finally, regarding McCabe, the Fifth Circuit affirmed the district court's decision to order a new trial. The jury had initially convicted McCabe of obstructing the investigation by falsifying reports, but the district court ordered a new trial when McCabe presented new evidence casting doubt on the government's theory. In light of the Fifth Circuit's affirmance of that ruling, the case against McCabe also returns to the district court for further proceedings.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-30345-CR0.wpd.pdf

Panel: Circuit Judges Jolly, Higginbotham, and Dennis

Argument: 7/11/2012

Date of Issued Opinion: 12/17/2012

Docket Number: Nos. 11-30345 & 11-30529

Decided: Affirmed in part and reversed and remanded in part

Case Alert Author: Aaron-Andrew P. Bruhl

Counsel: Holly A. Thomas for the United States; William Reagan Wynn, Kearney Wynn, for Defendant-Appellant McRae; Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., for Defendant-Appellant Warren; James Michael Small for Defendant-Appellee McCabe.

Author of Opinion: Judge Jolly

    Posted By: Aaron Bruhl @ 12/17/2012 07:33 PM     5th Circuit     Comments (0)  

December 7, 2012
  Batchelor v. Cain - 5th Circuit
Headline: Fifth Circuit Grants Habeas Relief for Defendant Who Was Denied Sixth Amendment Right to Self-Representation

Area of Law: Criminal

Issue(s) Presented: Whether a criminal defendant implicitly waived his sixth amendment right to represent himself after expressly asserting his right before trial but then failing to assert the right in other proceedings.

Brief Summary: Months before his trial for armed robbery, Defendant Marshall Batchelor moved to dismiss his appointed counsel and represent himself pursuant to the Sixth Amendment guarantee set forth in Faretta v. California. The state trial court denied Marshall's motion, and subsequently he was convicted and sentenced. Batchelor filed a habeas corpus petition stating a denial of his Sixth Amendment rights under Faretta. The federal district court granted his petition. The United States Court of Appeals for the Fifth Circuit affirmed, though on different grounds than the district court.

Argument (if known): 4/28/2011

Date of Issued Opinion: 5/29/2012

Docket Number: 10-30802

Decided: Affirmed

Counsel (if known): Jennifer P. McKay, Barham, Warner, Stroud & McKay for Batchelor; Ross Warren Bergethon, Office of the Attorney General for the State of Louisiana for Cain

Author of Opinion: Dennis

Edited: 12/12/2012 at 10:28 AM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/07/2012 11:52 AM     5th Circuit     Comments (0)  

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