January 2012 Archives

As much as we love New Orleans, home of the Fifth Circuit Court of Appeals, it is a dangerous city. There were 199 murders in the Crescent City in 2011. There have already been 20 murders in New Orleans this year, and January isn't quite finished.

While many of the culprits and victims are part of the city's drug and gang violence, bystanders and good Samaritans sometimes get caught in the cross-fire. As a Fifth Circuit practitioner, you not only need to be aware of your surroundings when appearing before the federal appellate court in New Orleans, you also need to take measures to make yourself a less-appealing target. So why not use your iPad and Thomson Reuters new ProView app to make yourself a little safer?

Or at least a faster-moving target.

The Fifth Circuit Court of Appeals ruled this week that displaced hurricane evacuees may not sue the Federal Emergency Management Agency (FEMA) for formaldehyde exposure under the Federal Tort Claims Act (FTCA) because the plaintiffs lacked subject matter jurisdiction.

The plaintiffs, evacuees who were placed in FEMA Emergency Housing Units (EHUs) in Mississippi and Alabama, filed a class action FEMA trailer lawsuit against over 100 defendants, including the federal government, alleging that the EHU trailers that FEMA provided for displaced Gulf Coast residents after Hurricanes Katrina and Rita jeopardized the plaintiffs' health.

Randall and Francis Kubosh are our heroes.

While some people just whine about red-light cameras, the Kuboshes used $200,000 of their own money to fund a grassroots campaign to end Houston red-light cameras.

Their efforts, however, led to a Fifth Circuit Court of Appeals tiff with the City of Houston and American Traffic Solutions (ATS), the company that had a contract to operate the Houston red-light cameras.

Be careful what you bill for. The Fifth Circuit Court of Appeals upheld a Texas medical billing professional’s convictions for healthcare fraud this week, finding that there was sufficient evidence to support the jury’s verdict.

Sylvia Delgado, a self-professed medical billing expert with 30 years of experience in medical coding and billing, owned a billing company called Med Comp Electronic Billing. Delgado formed Synergy, a business to provide group psychotherapy counseling to the elderly, with Licensed Master Social Worker Robert Rael and Dr. Rafael Solis, a licensed psychiatrist, in 2005.

The Fifth Circuit Court of Appeals heard oral arguments yesterday in an en banc rehearing of Doe v. Covington County School District, a case in which a plaintiff claims that a Mississippi school violated her civil rights by releasing her to an adult who raped her, despite the fact that the man was not on a list of approved adults who could check her out of school.

The hearing focused on whether the school had an affirmative duty to protect the plaintiff based on the special relationship created by the school's compulsory attendance policy, and whether the school's actions constituted deliberate indifference under the Fourteenth Amendment.

The federal False Claims Act (FCA) creates a cause of action for any person retaliated against by his employer for attempting to prevent an FCA violation. The cause of action, however, was not accompanied by a statute of limitations, so federal courts have been stuck applying the most-closely analogous state statute of limitations.

Courts don't always pick the right statute.

The Fifth Circuit Court of Appeals ruled last week that a Texas district court erred in applying the Texas Whistleblower Act (TWA) statute of limitations to a FCA retaliation lawsuit.

Less than a week after hearing oral arguments in the Texas sonogram bill appeal, the Fifth Circuit Court of Appeals ruled that the state can enforce the law while plaintiffs proceed with their challenge in court.

Writing for the three-judge panel, Chief Judge Edith Jones nixed District Judge Sam Sparks’ temporary order blocking enforcement of Texas H.B. 15. The bill requires a doctor to perform a sonogram on a woman requesting an abortion at least 24 hours before the procedure, describe the unborn child, and list agencies that offer alternatives to abortion. Doctors who fail to comply with the law risk losing their licenses and incurring a $10,000 fine, reports Politico.

The Fifth Circuit Court of Appeals will re-consider next week whether a public elementary school has a special relationship with its students that creates a constitutional duty to protect their personal security.

During the 2007-2008 school year, Tommy Keyes, an unauthorized stranger, checked plaintiff Jane Doe out of her elementary school at least six times. Doe’s father and grandmother, who brought a lawsuit on her behalf, allege that Keyes “brutally and viciously raped, sodomized and molested” Doe each time before returning her to school. Keyes was convicted of sexual battery in the case, and is currently serving a 10-year prison sentence, reports the Associated Press.

The Fifth Circuit Court of Appeals heard oral arguments Wednesday in the Texas Sonogram Bill case, Texas Medical Providers, et al v. David Lakey.

The New Orleans-based court will decide whether to lift U.S. District Judge Sam Sparks' order blocking enforcement of Texas H.B. 15, which requires a doctor to perform a sonogram on a woman requesting an abortion at least 24 hours before the procedure. The law also mandates that the doctor describe the unborn child to the woman, and list agencies that offer alternatives to abortion.

While most lawyers used the final week of 2011 to deplete their paid-time-off reserves, watch NFL games, and cheer for their favorite college teams in bowl games, the Fifth Circuit Court of Appeals was busy issuing opinions.

In an attempt to get you caught up with the latest and greatest in the Fifth Circuit, we're going over a few of the highlights from the last week: