Dismissal of Gas Futures Manipulation Action Affirmed, and Administrative, Contract, Criminal, Employment, Immigration and Tort Matters - U.S. Fifth Circuit
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Dismissal of Gas Futures Manipulation Action Affirmed, and Administrative, Contract, Criminal, Employment, Immigration and Tort Matters

In US v. Williams, No. 07-20689, the Fifth Circuit affirmed defendant's murder convictions, on the grounds that 1) the Government's articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant's first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct.  However, the court vacated in part, holding that the district court erred in its definition of "act of violence" under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.

Woodfox v. Cain, No. 08-30958, involved the state's appeal from the grant of petitioner's habeas petition in a murder prosecution.  The court of appeals reversed, holding that 1) petitioner failed to exhaust his Confrontation Clause claim in state court; 2) there was no indication in the state court adjudication that suggested a reliance on any procedural vehicle rather than the merits to deny relief; 3) it was not unreasonable to conclude that defense counsel did not render constitutionally deficient performance by failing to pursue a confrontation objection; and 4) the absence of a fingerprint expert did not cause petitioner prejudice that warrants habeas relief.

In Bailey v. Cain, No. 08-31222, a murder prosecution, the court of appeals dismissed petitioner's appeal of the denial of his petition, and affirmed the denial of petitioner's Fed. R. Crim. P. 60 motion, on the grounds that 1) omitted from petitioner's motion for a certificate of appealability was a specific reference to the judgment or order from which appeal was taken; and 2) petitioner made no attempt to show that he could not have obtained a transcription sooner if it were necessary to make his case before the district court.

Dale v. Holder, No. 08-60661, involved a petition for review of a decision by the Board of Immigration Appeals (BIA) upholding petitioner's order of removal under 8 U.S.C. section 1101(a)(43)(F) for being convicted of an aggravated felony.  The court of appeals granted the petition, on the grounds that 1) although the argument petitioner presented to the BIA was not identical to that which he raised in his petition for review, the arguments were sufficiently related to establish that he presented his ground for relief to the administrative agency in the first instance; and 2) the BIA erred as a matter of law in concluding that petitioner could not legally plead guilty to an attempted violation of N.Y. Penal Law 120.10(3) or (4).

Rice v. Astrue, No. 09-10589, concerned plaintiff's appeal from the district court's order requiring her attorney to remit a portion of her Equal Access to Justice Act (EAJA) award if she won attorney's fees at the administrative level.  The Fifth Circuit reversed, holding that a federal court may not condition the amount of its EAJA award of attorney's fees on a future grant of attorney's fees by the Commissioner of Social Security.

Bagby Elevator Co. v. Schindler Elevator Corp., No. 09-10804, involved an action for tortious interference with contract.  The court of appeals affirmed judgment for plaintiff, holding that 1) under the court's highly deferential standard of review, there was no reversible error in the district court's decision to use the pattern jury instruction; 2) there was sufficient evidence of both malice and gross negligence to support an award of exemplary damages; and 3) there was ample evidence of causation to support the verdict.

Hershey v. Engy. Transfer Ptnrs., L.P., No. 09-20651, concerned a putative class action under the Commodities Exchange Act ("CEA"), alleging manipulation of natural gas futures and options prices.  The Fifth Circuit affirmed the dismissal of the complaint, holding that plaintiffs did not allege facts tending to show that defendants had specifically intended to manipulate the cost of natural gas.

Crescent Towing & Salvage Co. v. Chios Beauty MV, No. 09-30055, an action for damages sustained when defendant's ship collided with plaintiffs' barges and tugboats during Hurricane Katrina.  The Fifth Circuit partially affirmed partial judgment for plaintiff, holding that the district court did not clearly err in its finding of a predicted "direct hit" on New Orleans by the hurricane, its factual findings based on this finding, and the ultimate finding of negligence to the extent that it relied upon this finding.  However, the court of appeals remanded on the ground that the district court needed to enter an order setting the total amount of recovery plaintiffs could recover in rem.

Kemp v. Holder, No. 09-30255, involved an action for violations of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act arising from the termination of plaintiff's employment as a federal court security officer.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff failed to show a genuine issue of material fact regarding whether he had a "disability," as that term is defined under the ADA.

Rathborne Land Co. v. Ascent Engy., Inc., No. 09-30499, concerned an action for breach of defendant's obligations to reasonably develop and explore a leased parcel of oil, gas, and mineral land.  The Fifth Circuit affirmed judgment for plaintiff in part, holding that 1) plaintiff's letter to defendant met the La. Rev. Stat. Ann. section 31:136 demand requirement; and 2) district court did not clearly err in concluding that plaintiff would have been able to lease the disputed acreage more than once if it had been able to seismically survey the parcel prior to 2006.  However, the court vacated in part, on the ground that neither the district court nor plaintiff could show adequate ground -- indeed, any relevant precedent -- for awarding consequential damages for lost leasing and seismic revenues on the entire parcel.

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