US Court of Appeals for the Fifth Circuit Opinions
Garza v. Escobar

Docket: 19-40664
Opinion Date: August 28, 2020
Judge: Stuart Kyle Duncan
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Fifth Circuit affirmed the district court's dismissal of plaintiff's First Amendment claim alleging political retaliation. Plaintiff was the Crime Victims Unit (CVU) Coordinator for the 229th Judicial District Attorney's Office and defendant was her boss, the District Attorney. As a preliminary matter, the court rejected plaintiff's claim that the district court erred by disposing of the complaint at the Federal Rule of Civil Procedure 12(c) stage. On the merits, the court held that plaintiff's employment was not shielded by the First Amendment and the district court correctly concluded that she was subject to the patronage dismissal exception to First Amendment retaliation claims. In this case, plaintiff's position as CVU Coordinator is a confidential or policymaking role, and one for which "party affiliation is an appropriate requirement for effective performance." The court also held that because plaintiff has not plausibly alleged a constitutional claim, her municipal liability claim was also properly dismissed.

Read Opinion

President Trump Approves Louisiana’s Major Declaration Request

www.houmatimes.com/news/president-trump-approves-louisianas-major-declaration-request/

US Court of Appeals for the Fifth Circuit Opinions
Colonial Oaks Assisted Living Lafayette, LLC v. Hannie Development, Inc.

Docket: 19-30995
Opinion Date: August 26, 2020
Judge: Don R. Willett
Areas of Law: Arbitration & Mediation, Business Law, Civil Procedure, Contracts

After Buyers purchased two care facilities from Sellers, Buyers filed suit alleging that Sellers made fraudulent or, at best, negligent misrepresentations in the parties' sale agreements. Buyers also brought claims against Sellers' representatives in their individual capacities. The Fifth Circuit affirmed the district court's dismissal of Buyers' claims with prejudice for failure to state a claim. The court held that the district court properly dismissed Buyers' non-fraud claims for negligent misrepresentation and breach of contractual representations and warranties because these claims were subject to arbitration. In regard to the remaining claims, the court held that Buyers have not adequately pleaded a misrepresentation with respect to both facilities and thus they failed to meet the particularity requirements of Federal Rule of Civil Procedure 9(b). Therefore, because there was no misrepresentation, there was no fraud.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Whole Woman's Health v. Paxton

Docket: 17-51060
Opinion Date: August 22, 2020
Judge: James L. Dennis
Areas of Law: Civil Rights, Constitutional Law, Health Law

Almost three years after a federal district court declared that Texas Senate Bill 8 placed an undue burden on a woman's right to access a previability abortion and enjoined its enforcement, the State seeks to stay the judgment. The Fifth Circuit denied the state's motion for a stay and held that June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this circuit. Under this circuit's reading of the Marks principle, that the challenged Louisiana law posed an undue burden on women seeking an abortion is the full extent of June Medical's ratio decidendi. The court stated that the decision does not furnish a new controlling rule as to how to perform the undue-burden test. Therefore, the court held that Hellerstedt's formulation of the test continues to govern this case, and because the district court correctly applied Hellerstedt's balancing test, remand is not warranted. The court also held that the state's law is patently procedurally defective where the state's failure to show the impracticability of moving first in the district court under Federal Rule of Appellate Procedure 8(2) is sufficient grounds to deny its motion.

Read Opinion

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

Docket: 19-70010
Opinion Date: August 21, 2020
Judge: Andrew S. Oldham
Areas of Law: Criminal Law

Defendant was convicted of capital murder and sentenced to death. Defendant, a former police officer, used his position and the police department's resources to orchestrate a murder. The Fifth Circuit denied defendant a certificate of appealability (COA) on his claim that he was deprived of his constitutional right to the effective assistance of counsel at his 1996 guilt-phase trial. The court held that no reasonable jurist could debate that defendant suffered no prejudice. The court also denied defendant a COA on his claim that his Sixth Amendment right to a jury trial was compromised by the adverse impact of external influences and misconduct during his 1996 guilt-phase trial. In this case, defendant failed to point to any external influences in this COA briefing. Finally, the court denied defendant a COA on his claims that the government withheld key evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), because the Brady claims had no evidentiary basis and were merely defendant's conclusions and speculations. Because the court cannot issue a COA, the court has no power to say anything about defendant's request for an evidentiary hearing.

Read Opinion

The business of football? Louisiana shops 'full steam ahead' toward LSU season

www.theadvocate.com/baton_rouge/news/business/article_06fed3a4-dd90-11ea-a315-4f3436601c37.html

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

Docket: 18-50635
Opinion Date: August 20, 2020
Judge: Jennifer Walker Elrod
Areas of Law: Criminal Law

Defendant and his wife were convicted of possession with intent to distribute 500 grams or more of methamphetamine. The district court granted defendant a new trial because the record does not show that he knew that the bags he removed from his house—and the bag his wife requested that he bring her—contained methamphetamine or any other controlled substance. The Fifth Circuit affirmed and held that the district court did not abuse its discretion in granting a new trial on the basis of insufficient evidence of knowledge. In this case, the evidence does not show that defendant ever laid eyes on the drugs themselves; the district court was not required to credit the wife's testimony in granting the motion for new trial; and the evidence only shows that defendant complied with his wife's request to bring her the bag containing the drugs but nothing more.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Defense Distributed v. Grewal

Docket: 19-50723
Opinion Date: August 19, 2020
Judge: Edith Hollan Jones
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law

Plaintiffs filed suit challenging the efforts of New Jersey's Attorney General and others to thwart plaintiffs' distribution of materials related to the 3D printing of firearms, alleging infringement of plaintiffs' First Amendment rights and state law claims. The district court granted the Attorney General's motion to dismiss for lack of personal jurisdiction, relying on Stroman Realty, Inc. v. Wercinski, 513 F.3d 476 (5th Cir. 2008). The Fifth Circuit held that the Attorney General has established sufficient minimum contacts with Texas to subject him to the jurisdiction of Texas' courts. The court held that Stroman is distinguishable from this case in at least two key respects: first, many of plaintiffs' claims are based on the Attorney General's cease-and-desist letter; and second, the Attorney General's assertion of legal authority is much broader than the public official in Stroman. Furthermore, the Attorney General failed to timely raise arguments regarding whether judgment in plaintiffs favor would offend traditional notions of fair play and substantial justice. The court applied the principles discussed in Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir. 1999), and Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482 (1984), and held that jurisdiction over the Attorney General is proper. Accordingly, the court reversed and remanded for further proceedings.

Read Opinion

Federal judge upholds Louisiana bar closures

www.houmatimes.com/news/federal-judge-upholds-louisiana-bar-closures/

Terrebonne Parish Renews School District Millage

www.houmatimes.com/news/terrebonne-parish-renews-school-district-millage/

Brown v. Wal-Mart Stores East, LP

Docket: 19-60719
Opinion Date: August 14, 2020
Judge: Stephen Andrew Higginson
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff filed suit against Wal-Mart for retaliation and wrongful termination and an assistant manager at Wal-Mart for tortious interference with an employment contract. Plaintiff alleged that she was fired after she reported her supervisor for sexually harassing other Wal-Mart employees. Wal-Mart alleged that plaintiff was terminated because she violated Wal-Mart’s Investigation and Detention of Shoplifters Policy. The Fifth Circuit affirmed the district court's grant of summary judgment for defendants, holding that plaintiff has met her prima facie burden of causation by showing close enough timing between the protected activity and the adverse employment action. However, the temporal proximity between plaintiff's protected activity and her termination is relevant to, but not alone sufficient to demonstrate, pretext. The court also held that a reasonable jury could not find that the supervisor's actions were the but-for cause of Wal-Mart's termination of plaintiff based on the record.

Read Opinion

United States v. Garner

Docket: 19-10884
Opinion Date: August 13, 2020
Judge: W. Eugene Davis
Areas of Law: Criminal Law

18 U.S.C. 3583(g), which requires revocation of supervised release and a term of imprisonment for certain drug and gun violations, is not unconstitutional under United States v. Haymond, 130 S. Ct. 2369 (2019). In Haymond, the Supreme Court held that a different mandatory revocation provision, section 3583(k), violates the Fifth and Sixth Amendments. The Fifth Circuit held that section 3583(g) lacks the three features which led the Supreme Court to hold section 3583(k) unconstitutional: first, while subsection (g) singles out certain conduct, only some of it is criminal; second, although subsection (g) takes away the judge's discretion to decide whether a violation should result in imprisonment, it does not dictate the length of the sentence; and third, subsection (g) does not limit the judge's discretion in the same "particular manner" as subsection (k). Therefore, the district court did not err in its revocation decision.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
In Re: Larry Sharp

Docket: 20-30127
Opinion Date: August 12, 2020
Judge: Per Curiam
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

After the Supreme Court ruled in Ramos v. Louisiana, 140 S. Ct. 1390, 1394, 1397 (2020), that the Sixth Amendment, as incorporated against the states in the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense, movant moved for the Fifth Circuit's authorization to file a second or successive federal habeas petition. The court denied the motion for authorization to file a successive habeas corpus petition and held that, even if the court assumed that movant's current claim is different from the one he raised twelve years ago, it remains barred by 28 U.S.C. 2244(b)(2). The court explained that, even if it further assumed that Ramos constitutes a "new rule of constitutional law," the Supreme Court plainly has not made it retroactive to cases on collateral review.

Read Opinion

Louisiana leadership backs Edith’s Bill’s inclusion in relief legislation; bill includes victims of senior fraud

www.houmatimes.com/news/louisiana-leadership-backs-ediths-bills-inclusion-in-relief-legislation-bill-includes-victims-of-senior-fraud/

'Secretive' coronavirus inmate furlough program records should be released, ACLU of Louisiana says

www.theadvocate.com/baton_rouge/news/coronavirus/article_c3330ab6-db49-11ea-bc0b-5fcf7929056a.html

Gov. Edwards Announces LDH has Obtained a Temporary Order Against a Denham Springs Restaurant for Continued Violations of Phase 2 COVID-19 Proclamation

www.houmatimes.com/news/gov-edwards-announces-ldh-has-obtained-a-temporary-order-against-a-denham-springs-restaurant-for-continued-violations-of-phase-2-covid-19-proclamation/

Louisiana Supreme Court Won't Review Life Sentence For Man Who Stole Hedge Clippers

www.npr.org/2020/08/05/899525589/louisiana-supreme-court-wont-review-life-sentence-for-man-who-stole-hedge-clippe?ft=nprml&f=

United States v. Penn

Docket: 19-10168
Opinion Date: August 5, 2020
Judge: Edith Brown Clement
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction and sentence for being a felon in possession of a firearm. The court held that defendant failed to present sufficient evidence on the fifth element of his justification defense and the district court properly refused to instruct the jury on the defense. Furthermore, even if the district court erred by excluding evidence related to the defense, the error was harmless. However, the court reversed the district court's restitution order, holding that the restitution imposed as a condition of supervised release can compensate only for losses caused by the specific conduct that is the basis for the offense of conviction. Therefore, even if the district court intended to order restitution as a condition of supervised release, the district court lacked authority to do so. Finally, the court held that precedent foreclosed defendant's contention that 18 U.S.C. 922(g), as construed, is unconstitutional.

Read Opinion

Moore v. Vannoy

Docket: 17-30801
Opinion Date: August 3, 2020
Judge: James Earl Graves, Jr.
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit affirmed the district court's denial of habeas relief to petitioner under 28 U.S.C. 2254(d). Petitioner alleged claims of ineffective assistance of appellate counsel (IAAC) based on state appellate counsel's failure to raise a Batson v. Kentucky, 476 U.S. 79 (1986), claim on direct appeal. The court held that the district court did not commit reversible error in failing to explicitly review the merits of the IAAC claim. The court also held that the magistrate judge's conclusion that no Batson violation occurred establishes that appellate counsel's failure to raise the Batson challenge on direct appeal did not prejudice petitioner. Therefore, petitioner failed to satisfy the elements of his IAAC claim.

Read Opinion

US Court of Appeals for the Fifth Circuit Opinions
Mays v. Chevron Pipe Line Co.

Docket: 19-30535
Opinion Date: August 3, 2020
Judge: Stuart Kyle Duncan
Areas of Law: Admiralty & Maritime Law, Personal Injury

After James Mays was killed in an explosion on an offshore platform owned by Chevron, Mays' widow and children filed suit against Chevron for state law wrongful death. Mays was directly employed by Furmanite, a Chevron subcontractor, which serviced valves on Chevron's platforms. At issue was whether Mays' accident was covered by the federal Longshore and Harbor Workers' Compensation Act (LHWCA). The jury found that Mays' death was caused by Chevron's Outer Continental Shelf (OCS) activities, and thus the LHWCA applied and Chevron did not enjoy state immunity. The Fifth Circuit affirmed and rejected Chevron's argument that the district court erred by instructing the jury to consider Chevron's OCS operations in answering the substantial nexus question. The court held that the district court did not misapply Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207 (2012), by instructing the jury to determine whether there was a substantial nexus between Mays' death and Chevron's—as opposed to Furmanite's—OCS operations. The court also rejected Chevron's argument that the evidence linking its OCS operations to Mays' death failed to meet the substantial nexus test as a matter of law. Finally, the court held that the district court did not abuse its discretion by refusing to reduce the jury's $2 million loss-of-affection award to Mrs. Mays.

Read Opinion