U.S. Fifth Circuit: February 2013 Archives
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

February 2013 Archives

Mississippi Tort Reform Survives Fifth Circuit Ringer

The question of whether the Mississippi statutory cap on noneconomic damages violates the Mississippi separation of powers clause sounds like a question for a Mississippi court. But this week, it was the Fifth Circuit Court of Appeals that decided that the Mississippi tort reform statute didn't conflict with the state's constitution.

How does that work, you wonder? We'll explain.

No Trial for Pro Se Plaintiff Who Tried Court's Patience

A court’s patience will only take you so far in the wild world of federal appeals. When a plaintiff fails to perfect proper service or respond to a motion to dismiss, that patience will eventually wear thin.

Such was the case last week, when the Fifth Circuit Court of Appeals ruled that a district court had not abused its discretion in dismissing a complaint after the plaintiff squandered multiple opportunities to perfect service of process. The good news for lawyers? If a pro se plaintiff keeps trying the court's patience, the case will eventually be dismissed.

10 Years of Lies Undermine 'Good Moral Character' Assertion

The distant past can come back to haunt a naturalization applicant.

To qualify for naturalization, an applicant must demonstrate that he is "a person of good moral character." In a matter of first impression, the Fifth Circuit Court of Appeals ruled this week that a district court can consider events that precede a naturalization application by more than one year in determining that an applicant could not demonstrate good moral character as a matter of law.

5th Circuit Extends Tapia to Sentence Revocation

Jesus Javier Garza violated the conditions of his supervised release and was sentenced to 24 months of imprisonment to be followed by 24 months of supervised release. The advisory Sentencing Guidelines range was 3 to 9 months of imprisonment.

In the course of imposing the sentence, the district court extensively discussed the rehabilitation opportunities that prison terms of varying lengths would afford Garza. On appeal, Garza argued that the district court improperly considered his rehabilitative needs in determining the length of his prison sentence in violation of Tapia v. United States.

The Fifth Circuit Court of Appeals agreed with him.

Scent Sensitivity Not a Disability: Does This ADA Ruling Stink?

Tina Milton was a clerical employee with the Texas Department of Criminal Justice (TDCJ) from November 1990 until April 19, 2007. She was responsible for looking for coded gang messages in inmate mail. She was terminated, administratively, after failing to provide medical documentation verifying FMLA leave.

Milton sued, arguing that she suffered from a disability: Namely, a sensitivity to scented candles and wall plug-ins.

If you think that wouldn’t create a problem for a TDCJ employee, you would be wrong.

La. Chief Justice Johnson Avoids 5th Circuit Battle, Takes Oath

As the final parades roll through New Orleans today, the State of Louisiana can celebrate more than just Mardi Gras.

There's a new Chief Justice in town, y'all. And the Fifth Circuit Court of Appeals didn't have to select her.

The changing of the guard -- from former Chief Justice Kitty Kimball to new Chief Justice Bernette Johnson -- occurred on February 1, but it was preceded by plenty of drama.

A-Tisket, A-Tasket, No Certified Question for Monk Caskets

It looks like the casket-making monks will have to win their case against the Louisiana State Board of Embalmers and Funeral Directors on constitutional grounds.

A tipster alerted us yesterday to an interesting tidbit from the Bayou State's top court: In January, the court declined to address a certified question from the Fifth Circuit Court of Appeals in the matter.

If you're new to this monk-casket judicial battle, we'll bring you up to speed on the controversy at hand, and what the certified question denial means.

Surprise! Upward Departure Doesn't Require Notice?

Nelfin Zelaya-Rosales got quite the surprise at his illegal reentry sentencing. Despite the fact that his presentence report recommended a 6-month sentence, the district court opted for an upward departure from the Sentencing Guidelines, and hit him with a 12-month sentence based on his five previous immigration encounters and four prior removals.

According to the Zelaya-Rosales, the sentence was unfair because he didn’t have prior notice. According to the Fifth Circuit Court of Appeals, that’s no big deal because there wasn’t a “miscarriage of justice.”