U.S. Fifth Circuit: July 2010 Archives
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

July 2010 Archives

Hurricane Katrina-Related Insurance Matter, and Criminal Matter

In US v. McCann, No. 09-30550, the court of appeals affirmed defendant's conviction for being a felon in possession of a firearm, on the grounds that 1) the factual contents of the prosecutor's closing comments were limited to evidence that was in the record; 2) defendant's substantial rights were not prejudiced by an improper prosecutorial vouching for the credibility of the officers at issue; and 3) the district court did not err by refusing to exclude the evidence that defendant made a death threat against a witness.

Danos Marine Inc. v. Certain Primary Protection & Indemn. Underwriters, No. 09-30378, involved an action to recover costs of wreck removal from defendant-underwriters of a liftboat resulting from the capsizing and sinking of that vessel in the Gulf of Mexico during Hurricane Katrina.  The court of appeals reversed judgment for defendant on the ground that the costs of removing the wreck were covered under the policy at issue but the value of the salvage did not exceed those costs.

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Sonnier v. Crain, No. 09-30186, concerned plaintiff's appeal from the denial of a preliminary injunction seeking to enjoin enforcement of a speech policy regulating the time, place and manner, and other matters relating to speech by non-students on the campus of Southeastern Louisiana University.  The court of appeals affirmed in part on the ground that given that there are instances in which the seven-day notice requirement may be necessary, the district court did not abuse its discretion in denying the preliminary injunction for the facial challenge of the seven-day notice requirement.  However, the court reversed in part on the ground that, because of the unbridled discretion a security fee provision gave to the University, the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

In US v. Balleza, No. 09-10131, the court of appeals affirmed defendant's sentence for conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine and conspiracy to commit money laundering, on the grounds that 1) given defendant's extensive involvement in the drug conspiracy, the district court's determination that defendant was not a minor participant in the offense was not implausible in light of the record as a whole, and, therefore, was not clearly erroneous; and 2) given the facts of the case and the deference given to district court sentencing decisions, defendant has not shown that the district court abused its discretion or that the sentence was unreasonable.

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RSR Corp. v. Int'l. Ins. Co., No. 09-10405, involved an action seeking a declaratory judgment that plaintiff had no obligations to defendant under four Environmental Impairment Liability policies that plaintiff's predecessor in interest had sold to defendant earlier.  The court of appeals affirmed summary judgment for plaintiff on the grounds that 1) by its plain language, the triggering of a condition in the policies requires only (a) the existence of "other insurance" insuring to defendant's benefit and (b) overlapping coverage between that other insurance and plaintiff's policies; 2) the policies had nothing to do with whether or not the pollution in question could be characterized as "routine"; and 3) the district court did not err in finding that a condition in the policies barred all recovery.

Thibault v. BellSouth Telecomms. Inc., No. 08-31226, concerned an action for unpaid wages arising out of electrical splicing work plaintiff performed in New Orleans, Louisiana in the aftermath of Hurricane Katrina.  The court of appeals affirmed the dismissal of the action on the grounds that 1) the summary judgment record does not contain sufficient evidence to support a finding that plaintiff was a Fair Labor Standards Act employee while performing splicer services; and 2) the court did not find sufficient summary judgment evidence to sustain a finding of a fixed term of employment for six months.

In US v. Bustillos-Pena, No. 08-31226, the court of appeals vacated defendant's sentence for violating 8 U.S.C. section 1326 by being knowingly and unlawfully present in the U.S. after having been deported for an aggravated felony, on the ground that applicability of a sixteen-level enhancement under section 2L1.2 of the Sentencing Guidelines was ambiguous where the defendant was deported before being sentenced to more than thirteen months of imprisonment on a conviction that predated his deportation and where the defendant was convicted of illegal reentry while incarcerated, and thus, the rule of lenity applied.

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Motion to Remand Challenge to Clean Water Act Rule Granted

ConocoPhillips Co. v. EPA, No. 06-60662, involved consolidated petitions for review of a Final Rule promulgated by the EPA pursuant to section 316(b) of the Clean Water Act (CWA).  The Fifth Circuit granted several parties' joint motion to remand and affirmed in part on the grounds that 1) pending a new rule, the EPA's CWA section 316(b) case-by-case permitting procedure, which was in place before the Phase III Rule at issue was promulgated, would remain in effect; 2) the EPA provided adequate notice of the economic-achievability test in the rule during rule making; and 3) the EPA's failure to estimate benefits for specific new facility locations did not render the process arbitrary or capricious.

As the court wrote: "Before us are various consolidated challenges to a Final Rule (the "Rule") promulgated by the Environmental Protection Agency (the "EPA") pursuant to § 316(b) of the Clean Water Act (the "Act" or the "CWA"). The Rule regulates the use of cooling water intake structures ("CWIS") for both existing and new offshore oil and gas extraction facilities. Originally, the environmental Petitioners (collectively "Riverkeeper") challenged the Rule as it applies to existing facilities, and the industry Petitioners (collectively "ConocoPhillips") challenged the Rule as it applies to new facilities. In light of the Supreme Court's decision in Entergy Co. v. Riverkeeper, however, Riverkeeper and the EPA have now jointly moved voluntarily to remand the existing-facilities portion of the Rule for reconsideration; Intervenor American Petroleum Institute ("Intervenor API") opposes remand."

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MGE UPS Sys., Inc. v. GE Csmr. & Indus. Inc., No. 08-10521, involved plaintiff's appeal from the district court's Fed. R. Civ. P. 50(a) dismissal of its Digital Millennium Copyright Act (DMCA) claim, and defendants' cross-appeal from the damages and injunctive relief awarded against them.  The court of appeals affirmed in part on the ground that plaintiff failed to show that bypassing its "dongle" infringed a right protected by the Copyright Act, because the dongle merely prevented initial access to the software at issue.  However, the court reversed in part, holding that 1) the district court erred in denying defendant's Rule 50(a) motion on plaintiff's copyright infringement claims because plaintiff failed to show damages under section 504(b) of the Copyright Act; and 2) defendants did not have the burden of demonstrating which portions of their revenue were not attributable to plaintiff's state law unfair competition claims.

As the court wrote:  "MGE UPS Systems, Inc. ("MGE") appeals the district court's Federal Rule of Civil Procedure 50(a) dismissal of its Digital Millennium Copyright Act ("DMCA") claim against Power Maintenance International, Inc. ("PMI");  General Electric Company ("GE");  GE Consumer and Industrial, Inc.;   and GE Industrial Systems, Inc. (collectively, "GE/PMI").   MGE also appeals the district court's denial of prejudgment interest on MGE's damages award.   GE/PMI cross-appeals on four grounds:  (1) whether the district court erred in dismissing GE/PMI's Rule 50(a) motion because MGE failed to present evidence of damages, or in the alternative, whether the district court erred in dismissing GE/PMI's Rule 50(b) motion because the $4.6 million jury award was not a reasonable calculation of damages;  (2) whether MGE impermissibly double-recovered damages;  (3) whether the parties had a tolling agreement in place that permitted MGE to recover damages prior to December 17, 2001;  and (4) whether the district court erred in granting MGE injunctive relief against GE/PMI."

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Affirmance of Bank Robbery Sentence

In US v. Blocker, No. 09-10798, the court of appeals affirmed defendant's bank robbery sentence on the ground that it was error for the district court to assess defendant two criminal history points under U.S.S.G. section 4A1.1(d), but where a sentence falls within both the correct and incorrect guidelines, the court of appeals does not assume, in the absence of additional evidence, that the sentence affected defendant's substantial rights.

As the court wrote:  "John Tyrone Blocker was sentenced to his 85-month term of imprisonment after pleading guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) and after stipulating to a second bank robbery in his factual resume. Blocker argues that the district court improperly calculated his guidelines range. It did so by erroneously adding two points to his criminal history score on the basis that he committed the bank robbery while under an active revocation of probation bench warrant. U.S.S.G. § 4A1.1(d). These two points placed Blocker in criminal history category II. When combined with an offense level of 27, the guidelines range was 78 to 97 months. Without the two points challenged by Blocker, he falls within criminal history category I, and his guidelines range falls to 70 to 87 months."

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In US v. Pack, No. 08-41063, the court of appeals affirmed defendant's convictions for possession with intent to distribute 17.91 pounds of marihuana in violation of 21 U.S.C. section 841(a)(1) and using, possessing, and carrying a Luger pistol during, in relation to, and in furtherance of a drug trafficking crime in violation of 18 U.S.C. section 924(c)(1), holding that 1) it was permissible for the police ask a passenger like defendant to identify himself and to run computer checks on his driver's license; 2) the police did not have to observe the equivalent of direct evidence of a particular specific crime in order to detain a lawfully stopped individual to investigate where there is reasonable suspicion of criminal activity on his part; and 3) the length of the detention and the scope of the officer's investigation were reasonable in light of the facts creating the reasonable suspicion criminal activity.

In US v. Roberts, No. 09-50067, the Fifth Circuit affirmed defendants' firearm possession convictions, on the grounds that ) the court would not second-guess the judgment of experienced law enforcement officers concerning the risks of this particular situation; 2) defendants did not argue that the protective sweep at issue was anything more than a cursory inspection of only those spaces where a person may hide; and 3) the police were justified in temporarily seizing the weapons under these circumstances.

In Willow Bend, L.L.C. v. Downtown ABQ Ptnrs., L.L.C., No. 09-31135, a breach of contract action in Louisiana, the court of appeals dismissed plaintiff's appeal from the dismissal of certain New Mexico-based defendants for lack of personal jurisdiction, on the ground that neither defendant remaining in the appeal was an actual party to the contract at issue or otherwise assumed a fiduciary duty to the plaintiff.

Xcaliber Int'l Ltd. LLC v. Atty. Gen., No. 09-30492, involved a challenge to an amendment to the Louisiana state law implementing the tobacco settlement between the largest manufacturers of cigarettes and most of the states.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) the statute did not mandate or authorize conduct that necessarily constituted a violation of the antitrust laws in all cases; 2) since the law established a state regulatory scheme that did not require or allow any input from private parties, it could not be classified as a hybrid restraint; and 3) plaintiff's allegations of non-price coercion were undermined by the limited relief it sought.

Penthouse Owners Ass'n v. Certain Underwriters at Lloyd's, No. 09-60652, involved a claim for insurance coverage for damage caused by Hurricane Katrina.  The Fifth Circuit vacated the district court's certified order finding a windstorm deductible endorsement in the policy at issue to require coverage for the destruction of the insured's buildings by Katrina's storm surge, on the ground that, based on principles of insurance contract interpretation, under Mississippi law, the deductible endorsement at issue did not render the policy ambiguous or otherwise expand coverage to include losses excluded elsewhere in the policy.

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Dismissal of Driver's Privacy Protection Act Suit Affirmed

Taylor v. Acxiom Corp., 08-41083, involved an action against various defendants alleging misuse of DMV records in violations of the Driver's Privacy Protection Act (DPPA).  The court of appeals affirmed the dismissal of the action on the grounds that the DPPA allows states to turn over their entire drivers motor vehicle database at the request of certain private entities. A person who buys DMV records in bulk does so for the purpose of making permissible actual use of information therein under 18 U.S.C. section 2721(b), even if that person does not actually use every single item of information therein. Further, the plain language of section 2721 allows resale of DMV records to one who is authorized and proposes to make actual use thereof as permitted under section 2721(b) notwithstanding that the seller does not actually use or intend to use the records before resale.

As the court wrote:  "Today, we decide whether the Driver's Privacy Protection Act (DPPA), 18 U.S.C., Chapter 123, §§ 2721-2725, allows states to turn over their entire drivers motor vehicle (DMV) database at the request of certain private entities. This case involves a class action seeking vast potential liquidated damages. For reasons stated below, we affirm the district court's dismissal of the action and hold that the DPPA affords states discretion to disburse DMV records for a permissible purpose under the statute."

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Amerisure Ins. Co. v. Navigators Ins. Co., No. 09-20060, concerned an action by a primary insurer seeking reimbursement from an excess insurer through equitable and contractual subrogation.  The court of appeals vacated summary judgment for defendant, on the grounds that 1) contractual subrogation placed plaintiff in the shoes of its insureds involved in the accident at issue; 2) the employer-indemnification exception barred coverage for one of the insureds; and 3) the district court needed to determine whether an individual insured was an independent contractor or an employee.

CareFlite v. AFL-CIO, No. 08-10807, involved an action seeking a declaratory judgment that certain disputes between an airline pilot union and plaintiff-airline were not arbitrable under the parties' collective bargaining agreement (CBA).  The court of appeals affirmed summary judgment for defendant in part, on the ground that because the CBA did not expressly or implicitly exclude the question of whether the airline gave a pilot sufficient time to prepare for a test from the grievance and arbitration mechanism, and this question called for an interpretation and application of the CBA, the pilot and the union could seek redress through the Railway Labor Act's (RLA) arbitral mechanism to resolve this dispute.  However, the court reversed in part on the ground that the grievance concerning the pilot's discharge was not a dispute growing out of the interpretation or application of the CBA and, therefore, was not a grievance or dispute subject to the RLA's arbitral mechanism.

Hartford Fire Ins. Co. v. City of Mont Belvieu, No. 09-40586, involved an action by a city against an insurer for compensation under a performance bond.  The court of appeals reversed judgment for plaintiffs, holding that the city's claim was barred by the applicable statute of limitations, and no act of defendant excused the city's failure to bring suit within the limitations period.

In US v. Roberts, No. 09-50067, the Fifth Circuit affirmed defendants' firearm possession convictions, on the grounds that 1) the police were reasonable in conducting a "knock and talk," which was an accepted investigatory tactic; 2) the officers had affirmative information indicating the presence of weapons based on information provided by the other building residents; and 3) the requirements for a valid protective sweep were met.

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Reduction of Damages in Breach of Contract Action Affirmed

Saucier v. Plummer, No. 09-60873, involved an action for breach of an oral contract to split commissions on a sale.  The court of appeals affirmed the district court's order reducing the damages awarded to plaintiff by the jury, on the ground that plaintiff's attorney, in closing argument, limited the scope of plaintiff's claim by telling the jury to award damages solely for one category of the commissions at issue.

As the court wrote:  "In summary, although nothing indicates that Saucier and Plummer entered into separate agreements for the division of commissions from the sale of Legacy I and Legacy II units, Saucier's attorney limited the scope of her claim by telling the jury to award damages solely for Legacy I commissions. The jury closely followed that instruction. The district court did not violate our mandate and properly denied Legacy II commissions."

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A.A. v. Needville Indep. Sch. Dist., No. 09-20091, involved an action by a Native American boy and his parents challenging a school district's requirement that he wear his long hair in a bun on top of his head or in a braid tucked into his shirt.  The court of appeals affirmed judgment for plaintiff, holding that the restriction violated the Texas Religious Freedom Restoration Act because plaintiff demonstrated a sincere religious belief in wearing his hair uncovered and visibly long.

Anderson v. Napolitano, No. 08-60494, concerned a petition for review of the Department of Homeland Security's reinstatement of a removal order against petitioner pursuant to 8 U.S.C. section 1231(a)(5).  The court of appeals denied the petition on the ground that petitioner's passport stamp, which simply indicated she was admitted through an immigration check point, was not evidence that the Attorney General consented to petitioner applying for readmission.

Nolos v. Holder, No. 08-60786, involved a petition for review of the BIA's decision to uphold the immigration judge's (IJ) order of removal and the BIA's subsequent denial of petitioner's separate motions to reconsider and to reopen.  The Fifth Circuit denied the petition on the grounds that 1) given that petitioner's parents did not acquire U.S. citizenship by virtue of their birth in the Philippines when it was a U.S. territory, petitioner could not have derived U.S. citizenship from them and was therefore removable if he was found to have been convicted of an aggravated felony; and 2) given that petitioner's term of imprisonment was over one year, the record of conviction established that petitioner was convicted of a theft offense pursuant to 8 U.S.C. section 1101(a)(43)(G) and is removable as an aggravated felon under 8 U.S.C. section 1227(a)(2)(A)(iii).

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In re: Texas Pig Stands, Inc., No. 09-50544, involved a bankruptcy trustee's appeal from the district court's reversal of the bankruptcy court's order refusing to hold the trustee liable for a tax deficiency incurred in running the debtor's business.  The court of appeals affirmed the district court's order, holding that the trustee exceeded his authority, violated the Plan, and committed willful misconduct, and therefore the Trust Agreement did not limit his liability.

As the court wrote:  "Vincent J. Liuzza, Jr. served as the bankruptcy trustee for Texas Pig
Stands, a venerable San Antonio, Texas, restaurant company. In an attempt to keep the restaurants afloat after a plan of reorganization had been confirmed, Liuzza failed to remit state sales taxes to the Texas Comptroller. The issue posed in this appeal is whether Liuzza may be held personally liable for the deficiency. TEX. TAX. CODE ANN. § 111.016(b) (Vernon 2007). The bankruptcy court found that Liuzza could not be held liable absent a showing of "gross negligence." The district court disagreed. We affirm the district court's judgment imposing liability."

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Moss v. BMC Software, Inc., No. 09-20488, involved an action claiming that defendant violated the Age Discrimination in Employment Act (ADEA), by declining to hire plaintiff when he applied for a Staff Legal Counsel position.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff failed as a matter of law to show that he was clearly more qualified than the candidate hired in order to establish pretext and had not proffered any direct evidence of discrimination.

Comer v. Scott, No. 09-50401, concerned an action claiming that the Texas Education Agency's (TEA) neutrality policy constituted an establishment of religion, in violation of the First Amendment's Establishment Clause.  The court of appeals affirmed summary judgment for defendant, on the ground that there was no evidence to support the conclusion that the principal or primary effect of TEA's policy was one that either advances or inhibits religion.

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Morgan v. Swanson, No. 09-40373, concerned an action alleging that defendant elementary school officials banned the distribution of religious materials.  The court of appeals affirmed the denial of defendants' motion to dismiss based on qualified immunity, holding that the First Amendment protected elementary school students from religious-viewpoint discrimination.

As the court wrote:  "This appeal arises from the district court's denial of Lynn Swanson and
Jackie Bomchill's (Appellants) Second Motion to Dismiss based on qualified immunity. Appellants argue, as they did below, that the First Amendment does not apply to elementary school students. Because it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination, we AFFIRM."

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