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US Court of Appeals for the Fifth Circuit Opinions
Veasey v. Abbott

Docket: 17-40884
Opinion Date: April 27, 2018
Judge: Edith Hollan Jones
Areas of Law: Civil Rights, Constitutional Law, Election Law

The Fifth Circuit reversed and rendered the district court's permanent injunction enjoining Senate Bill 14 and 5, which concerned the state's former photo voter ID law. SB 14 generally required voters to present one of five forms of government-issued identification in order to vote at the polls. The Fifth Circuit affirmed the district court's finding that SB 14 had an unlawful disparate impact on African American and Hispanic voters in violation of Section 2 of the Voting Rights Act. However, the en banc court reversed and remanded. The district court then entered an interim remedy whereby in-person voters who lacked an SB 14 ID could cast a regular ballot upon completing a Declaration of Reasonable Impediment and presenting a specified form of identification. SB 5 was subsequently enacted as a legislative remedy to cure and replace SB 14. The district court subsequently entered a remedial order permanently enjoining SB 14 as well as SB 5, vacating the interim remedy, and reinstating the pre-SB 14 law that lacked any photo voter ID requirement. This court then granted the State's emergency motion and stayed the district court's orders until the final disposition of the appeal. The court held that the appeal was not moot and the district court's overreach in its remedial injunction and proceedings was an abuse of discretion meriting reversal. The court held that, under the circumstances of this case, the district court had no legal or factual basis to invalidate SB 5, and its contemplation of Section 3(c) of the VRA relief also failed.

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Constitutional Law Opinions
St. Bernard Parish Government v. United States

Court: US Court of Appeals for the Federal Circuit
Docket: 16-2301
Opinion Date: April 20, 2018
Judge: Timothy B. Dyk
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law

Saint Bernard Parish Government and other owners of real property in St. Bernard Parish or in the Lower Ninth Ward of the City of New Orleans sued under the Tucker Act, 28 U.S.C. 1491(a)(1), alleging a taking. They claimed that the government was liable for flood damage to their properties caused by Hurricane Katrina and other hurricanes. Plaintiffs’ theory was that the government incurred liability because of government inaction, including the failure to properly maintain or to modify the Mississippi River-Gulf Outlet (MRGO) channel, and government action (the construction and operation of the MRGO channel). The Claims Court found a taking occurred and awarded compensation. The Federal Circuit reversed. The government cannot be liable on a takings theory for inaction and the government action in constructing and operating MRGO was not shown to have been the cause of the flooding. The Claims Court failed to apply the correct legal standard, which required that the causation analysis account for government flood control projects that reduced the risk of flooding.

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US Court of Appeals for the Fifth Circuit Opinions
Christopher v. Johnson & Johnson

Dockets: 16-11051, 16-11052, 16-11053, 16-11054, 16-11056, 17-10030, 17-10031, 17-10032, 17-10034, 17-10035
Opinion Date: April 25, 2018
Judge: Jerry Edwin Smith
Areas of Law: Personal Injury, Products Liability

These appeals and cross-appeal stemmed from the Pinnacle Hip multidistrict litigation (MDL). After plaintiffs received Pinnacle's metal-on-metal design, suffered complications, and required revision surgery, plaintiffs secured a half-billion-dollar jury verdict. Both plaintiffs and defendants appealed. The Fifth Circuit held that only a few of plaintiffs' claims failed as a matter of law but that the district court's evidentiary errors and plaintiff's counsel's deceptions furnished independent grounds for a new trial. In this case, counsel concealed payments to two key expert witnesses. Therefore, DePuy was entitled to judgment as a matter of law (JMOL) on Greer's and Peterson's defective marketing claims; J&J was entitled to JMOL on all plaintiffs' aiding-and-abetting claims; and the remaining claims avoided JMOL, although a new trial was required.

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US Court of Appeals for the Fifth Circuit Opinions
D'Onofrio v. Vacation Publications, Inc.

Docket: 16-20628
Opinion Date: April 24, 2018
Judge: Stephen Andrew Higginson
Areas of Law: Labor & Employment Law

Plaintiff filed suit alleging that her former employer, Vacation, interfered with her rights under the Family Medical Leave Act (FLMA). Vacation counter sued, alleging that plaintiff and her husband breached plaintiff's covenant not to compete, converted confidential information, and tortuously interfered with its business relationships, among other things, by conspiring to establish a competing vacation-sales franchise. After determining that the district court did not abuse its discretion by exercising supplemental jurisdiction, the court held that there were numerous disputes of material fact in this case. Therefore, the court affirmed in part and reversed in part the district court's grant of Vacation's motion for summary judgment. The court also vacated the district court's award of attorneys' fees, damages, and injunctive relief.

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US Court of Appeals for the Fifth Circuit Opinions
Romero v. Grapevine, Texas,

Docket: 17-10083
Opinion Date: April 20, 2018
Judge: Edith Brown Clement
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit affirmed the district court's grant of a motion to dismiss plaintiff's claims against the City and Eddie Salame, Chief of the Grapevine Police Department (GPD). The court also affirmed the district court's grant of summary judgment for Officer Robert Clark on plaintiff's remaining excessive force claim under 42 U.S.C. 1983 on the basis of qualified immunity. Ruben Garcia-Villalpando was shot and killed by Clark. Given the tense and evolving factual circumstances, the court held that Clark reasonably believed that Garcia-Villalpando posed a threat of serious harm. In this case, Garcia-Villalpando fled the scene of a serious crime, drove recklessly and endangered others, refused to obey roughly thirty commands, and approached Clark on a narrow highway shoulder directly adjacent to speeding traffic. The court explained that the fact that Garcia-Villalpando was ultimately found to have been unarmed was immaterial. Because plaintiff failed to demonstrate that Garcia-Villalpando's Fourth Amendment rights were violated, her claims against the City and Salame for failure to train and inadequate screening/hiring failed as well.

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US Court of Appeals for the Fifth Circuit Opinions
Nester v. Textron, Inc.

Docket: 16-51115
Opinion Date: April 18, 2018
Judge: Thomas Morrow Reavley
Areas of Law: Personal Injury

After plaintiff suffered permanent injuries when an unmanned utility vehicle ran her over, the jury awarded her and her husband a $15 million verdict. The Fifth Circuit affirmed, holding that the district court did not abuse its discretion by giving a more expansive definition of "safer alternative design;" the court rejected Textron's argument that a single-answer jury question erroneously commingled both supported and unsupported alternative-design theories; the district court did not abuse its discretion by admitting two pieces of evidence: a video depicting another unintended-acceleration event unfolding during a high-school football game at Dallas Cowboys Stadium and a "Best Protection" letter; and the district court did not abuse its discretion by refusing to bifurcate the trial.

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Johnson v. Thibodaux City

Docket: 17-30088
Opinion Date: April 17, 2018
Judge: Jerry E. Smith
Areas of Law: Civil Rights, Constitutional Law

Johnson, Every, Green, and Robinson were riding in a truck. Thibodaux Officer Amador recognized Robertson and knew she had an outstanding warrant. He stopped the truck, asked Robertson to exit, and handcuffed her. Every opened her door. Amador told her to get back in; she complied. More officers arrived and asked the passengers for identification. Green said she did not have any, but provided her name. She was not arrested. Johnson and Every refused to identify themselves. The officers arrested them for resisting an officer by refusing to identify themselves during a supposedly lawful detention (Louisiana Revised Statute 14:108) and pulled the women from the truck. Every ran; an officer used his Taser. The officers took the women to jail. They brought 42 U.S.C. 1983 claims. The court generally denied motions in limine seeking to exclude the testimony of the city’s experts on orthopedic surgery and on arrest techniques, police procedures, police training, and use of force, but prohibited testimony as to plaintiffs’ drug use, prior incidents with doctors or law enforcement, or the facts. A jury returned a verdict for the officers. The Fifth Circuit reversed as to Johnson’s unlawful arrest claims against four officers but otherwise affirmed. Under the Fourth Amendment, officers may not require identification absent an otherwise lawful detention based on reasonable suspicion or probable cause. Johnson’s detention lasted longer than necessary to effect the purpose of the stop, without any evidence that would support a finding of reasonable suspicion.

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US Court of Appeals for the Fifth Circuit Opinions
Sam v. Thompson

Docket: 17-30593
Opinion Date: April 12, 2018
Judge: Stephen Andrew Higginson
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Sam, aged 16, walked with friends to Walmart, where they split up. The group left the store; Stag, stole a jacket. At 9:49 p.m., Officer Richard responded to the reported theft, encountered Sam’s group, and activated his emergency lights. Sam’s group scattered. Another officer threatened to release a dog if they didn’t stop. Sam lay face down on the ground, with his hands on the back of his head. Sam stated in deposition that Richard slapped Sam's face, kneed him, handcuffed him, and shoved him against a car. The slap did not break the skin, but a scrape drew blood from Sam’s hip. Richard agreed that Sam did not resist, but denied using force. Another officer handcuffed Stag. Both were placed in Richard’s patrol car. Richard returned to Walmart at 10:03 p.m. A security guard identified Stag as the thief. At 10:45 p.m., Richard drove the boys to the police station. Sam’s mother picked him up. Sam did not visit a doctor that night. One of Sam’s friends stated in deposition that Sam “looked like he got hit” and “his face was a little red and bruised.” Medical records generated about six weeks later indicate that Sam complained of lingering hip pain. The district court dismissed Sam’s 42 U.S.C. 1983 complaint. The Fifth Circuit vacated in part. Sam’s evidence of excessive force is sufficient to survive a summary judgment motion. The court affirmed rejection of an unjustified detention claim.

​http://www.nola.com/politics/index.ssf/2018/04/louisiana_end_death_penalty.html

US Court of Appeals for the Fifth Circuit Opinions
United States v. Sealed Appellee

Docket: 17-50451
Opinion Date: April 10, 2018
Judge: Per Curiam
Areas of Law: Criminal Law

The Fifth Circuit vacated appellee's 80 month sentence and remanded for resentencing. In this case, appellee pleaded guilty, pursuant to a plea agreement, to conspiring to possess with intent to distribute 1,000 kilograms or more of a mixture or substance containing a detectable amount of marijuana. The court held that a motion by the government was required for the district court to depart below the minimum term of imprisonment established by Congress for the drug offense appellee committed. Therefore, it was error for the district court to sua sponte depart from the minimum.

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​Louisiana Legislature 2018 recap: Lawmakers restrict gun laws

www.nola.com/expo/erry-2018/04/2fdece842a5343/louisiana_legislature_2018_wha.html

​US Court of Appeals for the Fifth Circuit Opinions
United States v. Garcia

Docket: 17-10862
Opinion Date: April 6, 2018
Judge: Per Curiam
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction of illegal reentry. The court held that any challenged statements from the prosecutor were not improper and, moreover, they did not affect defendant's substantial rights; under consistent circuit precedent, the warrant of removal was properly admitted under the public records exception pursuant to Federal Rule of Evidence 803(8); and there was no evidence suppressed for Brady v. Maryland purposes.

​US Court of Appeals for the Fifth Circuit Opinions
Lincoln v. Colleyville, Texas

Dockets: 17-10201, 17-10841
Opinion Date: April 5, 2018
Judge: Edith Brown Clement
Areas of Law: Civil Rights, Constitutional Law

The Fifth Circuit affirmed the district court's grant of qualified immunity to three officers who responded to a shooting incident involving plaintiff's father. The court held that, although the officers violated plaintiff's Fourth Amendment rights by detaining her for four hours without probable cause, such a right was not so clearly established that the officers could be liable. The court explained that it, as well as other circuits, have determined that officers acting under similar circumstances—detaining a sole witness for questioning and investigative preservation—did not violate any clearly established right. The court reasoned that it followed that these officers similarly were not bound by any such clearly established law.

​US Court of Appeals for the Fifth Circuit Opinions
Herster v. Board of Supervisors of Louisiana State University

Docket: 16-31242
Opinion Date: April 4, 2018
Judge: Carl E. Stewart
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Fifth Circuit affirmed the dismissal of plaintiff and her husband's claims against LSU. The court held that the district court properly granted LSU’s motion for judgment as a matter of law for plaintiff's Title VII gender discrimination in pay claim where plaintiff failed to show circumstantial or direct evidence of discrimination; the district court properly granted LSU's motion for judgment as a matter of law for plaintiff's Louisiana whistleblower statute claim where plaintiff failed to prove that LSU retaliated against her for disclosing that the School of Art imposed unauthorized course fees that violated the Louisiana Constitution; and the district court properly granted LSU's motion for summary judgment for plaintiff's Louisiana state law spoliation claim where no LSU policy required the professor at issue to maintain, preserve, or provide his notes that were taken during the faculty member panel meeting that included a discussion of plaintiff's reappointment.

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US Court of Appeals for the Fifth Circuit Opinions
16 Front Street, LLC v. Mississippi Silicon, LLC

Docket: 16-60050
Opinion Date: March 30, 2018
Judge: Priscilla Richman Owen
Areas of Law: Environmental Law

Front Street filed a citizen suit under the Clean Air Act (CAA), 42 U.S.C. 7604, to enjoin Mississippi Silicon from constructing a silicon plant. The Fifth Circuit affirmed the district court's dismissal of the claim against Mississippi Silicon where section 7604(a)(3) did not authorize suits against facilities that have either obtained a permit or were in the process of doing so, and thus it did not apply here. The court held, however, that the district court should not have dismissed the claims against MDEQ based on the time-of-filing rule. In this case, Front Street has cited no decision in which the Supreme Court or a Circuit Court has held that the time-of-filing rule applies to facts like those in the present case. The court rejected Mississippi Silicon's argument that Front Street lacked standing to appeal their claim against MDEQ. Finally, the court denied Mississippi Silicon's motion for attorneys' fees. The court remanded for further proceedings.

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