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

Docket: 16-10819
Opinion Date: December 28, 2017
Judge: Jerry E. Smith
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction for possession of firearms in furtherance of a crime of violence. The court held that the district court did not err by including the government's requested jury instruction. Although the court found that the addition unnecessarily confused the issue and should not have been included, it did not ultimately misstate the law and was therefore not reversible error. The court also held that there was sufficient evidence to convict defendant of possession of firearms in furtherance of the crime of extortion.

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US Court of Appeals for the Fifth Circuit Opinions
Archer and White Sales, Inc. v. Henry Schein, Inc.

Docket: 16-41674
Opinion Date: December 21, 2017
Judge: Higginbotham
Areas of Law: Arbitration & Mediation

The Fifth Circuit affirmed the district court's decision reversing the magistrate judge's grant of a motion to compel arbitration. In this case, plaintiff alleged violations of the Sherman Antitrust Act, 1 U.S.C. 15, and the Texas Free Enterprise and Antitrust Act. Defendants moved to compel arbitration pursuant to a clause in the parties' contract (the Dealer Agreement). The court held that, regardless of whether an agreement clearly and unmistakably delegates the question of arbitrability, defendants' arguments for arbitrability were wholly groundless. Therefore, this action was not subject to mandatory arbitration. The court need not reach the question of whether the third parties to the arbitration clause could enforce such an arbitration clause.

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US Court of Appeals for the Fifth Circuit Opinions
Wilkerson v. University of North Texas

Docket: 16-41716
Opinion Date: December 20, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Fifth Circuit reversed the district court's denial of summary judgment to the administrators of a university on their immunity defenses. Plaintiff filed suit alleging that he was deprived of his property interest in his job without due process and tortious interference with his employment contract. The court held that the district court erred in denying the administrators qualified immunity against the section 1983 claim because plaintiff did not have a clearly established property right. Furthermore, state law compelled a similar result on the tortious interference claim. Accordingly, the district court should have granted immunity to the administrators.

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US Court of Appeals for the Fifth Circuit Opinions
Solomon v. Lockheed Martin Corp.

Docket: 17-10046
Opinion Date: December 19, 2017
Judge: Leslie H. Southwick
Areas of Law: Government Contracts

The Fifth Circuit affirmed the district court's holding that it lacked jurisdiction over relator's claims based on the public disclosure bar of the False Claims Act (FCA). Relator filed suit against his employer Northrop Grumman and against Lockheed Martin for making false claims against the government. The court held that it lacked jurisdiction to hear relator's claims because he failed to demonstrate that he was the original source of the Systems Design and Development contract. In this case, the record made clear that relator derived his knowledge about the connection between cost performance and award fees from portions of the contract that were publicly disclosed before he filed his complaint.

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US Court of Appeals for the Fifth Circuit Opinions
Manson Gulf, LLC v. Modern American Recycling Service, Inc.

Docket: 17-30007
Opinion Date: December 18, 2017
Judge: Thomas Morrow Reavley
Areas of Law: Admiralty & Maritime Law, Personal Injury

After a longshoreman stepped through a hole in a decommissioned oil platform and fell 50 feet to his death, his spouse filed a negligence action against Manson. The platform sat atop a barge chartered by Manson, who ordered the hole's creation but did not cover the hole or warn of its existence. The district court granted summary judgment for Manson, finding no liability under any of the three Scindia duties: a turnover duty, a duty to exercise reasonable care in the areas of the ship under the active control of the vessel, and a duty to intervene. The Fifth Circuit reversed the district court's grant of summary judgment with respect to the duty to warn of hidden dangers. In this case, there was conflicting evidence regarding whether the hole was a hidden hazard, one a stevedore would not anticipate. Finally, the court held that this case fell outside the narrow caveat in West v. United States, 361 U.S. 118, 119 (1959). Accordingly, the court remanded for further proceedings.

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

Docket: 16-20397
Opinion Date: December 15, 2017
Judge: Edward C. Prado
Areas of Law: Criminal Law

The Fifth Circuit vacated defendant's conviction for possession of a controlled substance with intent to deliver and possession of a firearm during and in relation to a drug trafficking crime. The court held that the prosecutor's questioning of a detective admitted testimonial hearsay in violation of defendant's Confrontation Clause rights. Accordingly, the court remanded for a new trial.

​US Court of Appeals for the Fifth Circuit Opinions
Babin v. Quality Energy Services, Inc.

Docket: 17-30059
Opinion Date: December 14, 2017
Judge: King
Areas of Law: Civil Procedure, ERISA

Babin, employed by Quality, developed carpal tunnel syndrome and had several surgeries. Three months after he returned to work, his employment ended. Babin participated in Quality’s employee benefit plan, which provided short- and long-term disability benefits, governed by the Employee Retirement Income Security Act (ERISA). Babin submitted a short-term disability benefits application to Standard, Quality’s insurer. In February 2013, Standard denied Babin’s claim because it had not received a necessary form from Quality. Babin alleges that he provided that form to Quality, which failed to complete it. In February 2014, Babin’s counsel asked Quality for disability plan documents. Babin claims that Quality did not send those documents before he filed suit, that he believed that the short-term plan provided six months of benefits, and, had he known that the plan only provides three months of benefits, he would have applied for long-term benefits; Quality’s failure to produce the documents caused him to miss the window for long-term benefits. Babin filed suit 20 months after requesting the documents, alleging failure to produce documents and failure to pay benefits. The parties settled the denial-of-benefits claim. The court held that Louisiana’s one-year prescriptive period for delictual claims applies to 29 U.S.C. 1132(c) claims, so Babin’s claim was time-barred. The Fifth Circuit affirmed, rejecting Babin’s argument that Louisiana’s 10-year prescriptive period for personal actions should govern his claim for failure to produce documents.

National Hispanic Caucus of State Legislators Calls for Regulating Marijuana 

Quoting the MPP Blog (https://blog.mpp.org), "The resolution delves deeply into the history of marijuana prohibition, recognizing the racist foundations of the earliest marijuana laws being used to discriminate against people of color, through the racial disparity that exists in marijuana enforcement to this day.
The Caucus called on Congress to decriminalize marijuana at the federal level, and for state lawmakers to regulate marijuana for adult use and seal previous marijuana-related criminal records."

This resolution explains how much of the prohibition is rooted in Louisiana's dark and disgraceful past:

“Marihuana as a Developer of Criminals” from Eugene Stanley, district attorney of New Orleans, Louisiana, which was suffused with intrinsic bias and xenophobia targeting many groups. Against Hispanics in particular, it included a heading stating that “Marihuana is the Mexican term for Cannabis Indica.” But its bias did not stop there. It also stated that, “in the South, amongst the Negroes, it is termed ‘mooter,’” and later, to underscore the attack on African Americans, it stated that “it is popularly known amongst the criminal element as ‘muggles’, or ‘mooter,’” implicitly linking African Americans with criminal behavior. In fact, both Mr. Stanley’s report and Mr. Ansingler’s main testimony to Congress blamed marijuana for the “numerous acts of cruelty” of the ancient cult of Assassins, with Mr. Anslinger going so far as to state that “it is said the Mohammedan leaders, opposing the Crusaders, utilized the services of individuals addicted to the use of hashish for secret murders,” in a thinly veiled religious attack against Muslims." 

Please find the full resolution at:
nhcsl.org/153/resolution/calling-for-the-decriminalization-commercialization-and-taxation-of-cannabis/

 
 

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

Docket: 16-41264
Opinion Date: December 11, 2017
Judge: Gregg Costa
Areas of Law: Criminal Law, Internet Law

18 U.S.C. 1030(a)(5)(A) prohibits intentionally damaging a computer system when there was no permission to engage in that particular act of damage. The Fifth Circuit affirmed defendant's conviction of knowingly causing the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causing damage without authorization, to a protected computer, in violation of section 1030(a)(5)(A). In this case, defendant was the Information Technology Operations Manager for ClickMotive, a software webpage hosting company. Upset that a coworker had been terminated, defendant sabotaged the company's electronic system by deleting files, disabling backup operations, diverting emails, and preventing remote access to the company's network. The court held that defendant lacked permission to inflict the damage he caused and sufficient evidence supported defendant's conviction. Finally, the court held that the statute was not unconstitutionally vague.

​Louisiana in the interest of C.F.

Docket: 2017-CJ-1054
Opinion Date: December 6, 2017
Judge: Greg G. Guidry
Areas of Law: Family Law

The district court found clear and convincing evidence that supported at least one ground for termination of parental rights, but it nevertheless concluded termination was not in the best interest of the child. The Louisiana Supreme Court found the district court was clearly wrong in finding that termination of the father’s parental rights was not in the best interest of the child. Accordingly, the Court reversed the district court's judgment and rendered judgment terminating the rights of the father and allowing the child to be adopted.

​US Court of Appeals for the Fifth Circuit Opinions
Swenson v. United of Omaha Life Insurance Co.

Docket: 17-30374
Opinion Date: December 4, 2017
Judge: Costa
Areas of Law: ERISA

The Fifth Circuit affirmed the district court's dismissal of plaintiff's claims, holding that the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1132, preempted state law claims. The court held that, although the savings clause preserves a role for certain state laws that regulate insurance, state claims that provide a separate vehicle for seeking benefits from an ERISA plan remain preempted as such claims must be brought under ERISA's civil enforcement provision. The court explained that, otherwise, the exclusivity and uniformity of that federal remedy would be undermined. In this case, because plaintiff's claim for benefits must be brought under federal law, the district court correctly dismissed her state law claims seeking the same relief. Furthermore, the availability of that statutory remedy under section 502 of ERISA also defeated plaintiff's claim for equitable relief under federal law.

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

Docket: 17-40362
Opinion Date: November 30, 2017
Judge: Jerry E. Smith
Areas of Law: Public Benefits

The Fifth Circuit affirmed the district court's denial of social security disability benefits to plaintiff. The court held that the ALJ's decision not to follow the VA's 100% disability rating determination was supported by substantial evidence where the court considered, but ultimately rejected the VA's findings, in part because the VA relied heavily on a one-time evaluation by a doctor who had not formed a treating relationship with plaintiff. The court explained that reports by two state-agency consultants cut against the VA's determination, and it was emphatically the ALJ's province to weigh the evidence and decide among these competing accounts. The court rejected plaintiff's remaining claims.

​Austin v. Davis

Docket: 13-70024
Opinion Date: November 30, 2017
Judge: Priscilla R. Owen
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit affirmed the district court's grant of summary judgment for the State in this capital murder case. The court held that petitioner failed to present clear and convincing evidence sufficient to overcome the state trial court's determination that he was competent to waive counsel and plead guilty. The court rejected petitioner's claims of ineffective assistance of appointed trial counsel and claims that he did not receive a fair trial and juror bias. Finally, the court held that the district court did not abuse its discretion by denying his request for an evidentiary hearing.