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CLASS ACTIONS
Cole v. General Motors, July 31
The circuit issues a revised opinion.
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DEATH PENALTY, JURY
Dorsey v. Quarterman, July 30
Defendant claimed that a juror in his capital
murder trial was improperly exposed to extraneous material consisting
of a jailhouse interview defendant gave to a news reporter during
which he admitted to other crimes. J. Davis rules that the error was
harmless because only one juror saw the interview transcript, stopped
reading when she realized what the contents and notified the judge of
the incident.
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IMMIGRATION, SENTENCING
USA v. Gutierrez-Bautista, July 27
Defendant challenged his sentence for being in
the country illegally, claiming a prior Georgia conviction for
trafficking in methamphetamine is not a "drug trafficking offense" for
sentencing purposes. J. Owen rules that Georgia's law infers intent to
traffic based on the quantity of drugs, similar to the federal law,
and thus is a "drug trafficking offense."
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EMPLOYMENT
Arismendez v. Nightingale Home Health, July 26
[Amended opinion.] A jury found that an
employee's pregnancy was a motivating factor in her employer's
decision to fire her, but the district court granted the employer
judgment as a matter of law. J. Benavides rules that remarks made to
the employee during her termination are not "stray remarks" as found
by the district court and in fact constitute sufficient evidence of
discrimination. Reversed.
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ERISA
Wade v. Hewlett-Packard, July 26
An employee challenged summary judgment for the
employer in a dispute over denial of short-term disability benefits.
J. Dennis rules that substantial evidence supports denial of benefits;
thus the decision was not arbitrary and capricious. Affirmed.
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IMMIGRATION, SENTENCING
US v. Gomez-Gomez, July 26
[Amended opinion.] Defendant, who challenged his
sentence for illegal re-entry, claimed that the trial court improperly
enhanced the sentence based on a prior rape conviction. J. Benavides
finds that the rape conviction was not a crime of violence because the
California statute could have been violated without the use of force.
Vacated.
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PRISONERS RIGHTS
Forgan v. Howard County, July 26
A man's family sued the county after he was found
dead from suicide in his jail cell, claiming he should have been
classified at high-risk for suicide. J. Benavides rules that the
county is immune from suit because the family does not allege that the
trousers the man was issued by the jail and which he used to hang
himself were not defective, so the Texas Tort Claims Act's waiver
provision does not apply.
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NEGLIGENCE
Doe v. Tangipahoa Parish School Board, July 25
Plaintiff sued for an alleged injury from the
reading of an invocation at a school board meeting. J. Jones rules
that because plaintiff cannot establish he ever attended a school
board meeting, he cannot show injury and lacks standing.
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WEAPONS
US v. Villegas, July 25
Defendant challenged his firearm convictions,
claiming the jury had to reach a unanimous verdict to at least one of
the allegations. The appeals court rules that absolute factual
concurrence "is not mandatory, and indeed, would be unworkable," and
that the law at issue is more concerned with who cannot own firearms
than the type of firearms allowed. Affirmed.
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TAX, RESTITUTION
US v. Nolen, July 25
[Revised opinion.] Defendant was convicted of tax
evasion after he decided he was not subject to federal taxation
because he was a non-resident, and instead resided in the "sovereign
Republic of Texas." J. Wiener rules that the evidence supports the
conviction but that the trial court erroneously included restitution
as part of the sentence because the exact amount of back taxes owed by
defendant was not determined at trial. Partially reversed.
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EVIDENCE, DRUG OFFENDER
US v. Viscarra, July 25
Defendant challenged his conviction for
trafficking methamphetamine, claiming the evidence did not establish
he knew drugs were in a car he was in. J. Benavides rules that
defendant does not point to any exonerating evidence while the
government introduced numerous facts that defendant knew drugs were in
the car, so the evidence is sufficient.
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ERISA
Custer v. Murphy Oil USA Inc., July 24
An employee was hurt at home and as a result was
terminated since he had become totally disabled. The employee claimed
that the employer, Murphy Oil, improperly changed its benefits
structure a year before the accident. J. Garza rules that the
employee's testimony that he did not receive a notice of change of
plan benefits is supported by evidence that other employees did not
receive the notice, so summary judgment on this claim must be
reversed.
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MUNICIPAL LAW
Haspel & Davis Milling v. Board of Levee Commissioners, July 23
The Board of Commissioners of the Orleans Levee
District challenged an eminent domain ruling in favor of landowners
that awarded over $17 million after their land had been taken to
construct the Bohemia Spillway. J. Davis rules that the landowners
previously entered into a settlement agreement that compromised their
takings claims and, in doing so, converted any takings claim, for the
Board of Commissioners' failure to pay under the settlement, into a
claim for breach of contract.
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EMPLOYMENT
Arismendez v. Nightingale Home Health Care, July 23
A jury found that an employee's pregnancy was a
motivating factor in her employer's decision to fire her, but the
district court granted the employer judgment as a matter of law. J.
Benavides rules that remarks made to the employee during her
termination are not "stray remarks" as found by the district court and
in fact constitute sufficient evidence of discrimination. Reversed.
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IMMIGRATION
Zhu v. Gonzales, July 23
A Chinese citizen sought asylum after she was
forced to have an abortion in China, but the immigration judge found
that she had the abortion voluntarily. J. Wiener rules that the
consequences of carrying the child to term, including possible loss of
her job, accompanying benefits and housing, support a determination
that the abortion was forced. Thus petitioner is entitled to
withholding removal.
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DEATH PENALTY
Woods v. Quarterman, July 23
Defendant claimed he is ineligible for execution
because he is mentally retarded. J. DeMoss rules that defendant's
childhood IQ scores are more reliable than those attained following
his arrest for sexually assaulting and murdering a girl because the
later scores were attained while defendant had an incentive to score
poorly.
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JURY
USA v. Nguyen, July 23
Twin brothers claimed that the trial court should
not have given a deliberate ignorance instruction at their trial for
mortgage fraud. J. Dennis rules that the government presented
sufficient evidence of defendants' suspicious behavior to infer
subjective knowledge of illegal activity and the routine and repeated
pattern of suspicious activity coupled with this knowledge support a
deliberate ignorance instruction.
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JUDICIARY
Jenevein v. Willing, July 20
A Texas state court judge claimed that his First
Amendment rights were violated when the state Commission on Judicial
Conduct publicly censured him for public statements made regarding a
case pending in the Dallas County Courts at Law. J. Higginbotham rules
that, although the judge should be impartial, Texas elects judges and
thus he is a political officeholder who has a right to address his
constituents.
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IMMIGRATION, SENTENCING
USA v. Gomez-Gomez, July 20
Defendant, who challenged his sentence for
illegal re-entry, claimed that the trial court improperly enhanced the
sentence based on a prior rape conviction. J. Benavides finds that the
rape conviction was not a crime of violence because the California
statute could have been violated without the use of force. Vacated.
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ARBITRATION
JP Morgan Chase v. Conegie, July 19
[Amended opinion.] JP Morgan Chase challenged the
denial of a motion to compel arbitration, issued after the district
court ruled that defendant's mother could not sign a nursing home
agreement containing the arbitration clause on defendant's behalf
because no agency relationship existed. J. Benavides rules that
defendant's mother could bind her to the agreement because defendant
admitted she did not have the capacity to sign the agreement.
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LABOR
The Strand Theatre v. National Labor Relations Board, July 19
The lower court found that an employer improperly
terminated the use of a union's hiring hall and refused to bargain
with the union. J. Jones rules that in industries other than
construction a union is entitled to a presumption of majority support,
and the employer made no effort to show the union had lost majority
support. Petition denied.
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MARITIME
Calix-Chacon v. Global International Marine Inc., July 19
Global International Marine challenged the lower
court's refusal to dismiss a suit filed by a seaman, who claimed the
company should pay for a heart operation. J. Davis rules that the
district court improperly relied on public policy grounds to enforce a
forum selection clause because the Shipowners Liability Convention of
1936 does not invalidate forum selection clauses in claims raised by
injured seamen. Remanded.
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CLASS ACTIONS, HEALTHCARE
Maldonado v. Ochsner Clinic, July 19
Three plaintiffs sought to represent a class of
uninsured patients, who received treatment from Ochsner Clinic
Foundation, based on claims that the clinic improperly charged them.
J. Jones rules that the district court properly denied class
certification because plaintiffs cannot identify any way the clinic
could offer a "mutually affordable" rate of services as requested.
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EVIDENCE
USA v. Ibarra, July 19
Defendant, who challenged his conviction for
possession of over five kilograms of cocaine, claimed that the trial
court improperly allowed a DEA agent to testify that no drug
trafficking organization would entrust a large shipment of cocaine to
a driver who did not know what he was transporting. J. DeMoss rules
that a new trial is warranted because the government failed to prove
that defendant, a truck driver, was aware of the cargo in his trailer
because the drugs were concealed, and the testimony was the last heard
by the jury prior to deliberations.
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DOUBLE JEOPARDY, SEX OFFENDER
USA v. Planck, July 19
Defendant, who challenged his convictions for
possession of child pornography, claimed that three of the convictions
are based on multiplicitious counts. J. Barksdale rules that the
counts are not multiplicitious because defendant possessed the same
images in three different formats, a laptop computer, a desktop
computer and individual computer disks so he was properly found to
have committed three different crimes.
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FRAUD
USA v. Mann, July 19
The former police commissioner of a Texas town
challenged his convictions for extortion "under color of official
right." J. Clement rules that the government presented ample evidence
of defendant's illegal activities on certain counts of the multi-count
indictment, but the government failed to prove defendant's activities
had a substantial impact on interstate commerce regarding several
other counts. Reversed in part.
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SEARCH
USA v. Khanalizadeh, July 18
Defendant moved to suppress drugs found in his
car during a traffic stop. The appeals court rules that the officer
had reasonable suspicion to detain defendant during the traffic stop
based on discrepancies in his story and an FBI alert to watch for
suspected drug dealers leaving Dallas en route to Memphis. Affirmed.
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FORFEITURE
USA v. Holdy Land Foundation, July 18
In US v. Thier, the circuit court ruled
that the notice and hearing requirements of the Rules of Civil
Procedure applied to restraining orders issued under the criminal
forfeiture statute. Judges Stewart and Benavides overrule that
determination as out of step with several other circuits, and the
circuit rules that because a couple's interests in forfeited assets
are "minimal at best," they have no right to request a hearing.
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TAX
Merlo v. Commissioner of Internal Revenue, July 17
The tax court ruled that stock options that
became worthless could not offset a determination that, the year
before the stock became worthless, the taxpayer realized income on the
options. J. King rules that the taxpayer is a non-corporate taxpayer
and thus he can only consider capital losses to the extent of capital
gains plus $3000 or the excess of losses over gains, whichever is
lower and net capital losses as such are excluded from the computation
of net operating losses.
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EVIDENCE
Meadows v. Hartford Life Insurance Co., July 17
An employee of Camelot Music claimed that
Hartford Life Insurance used his personal information disclosed as
part of his employment with Camelot to conduct searches to determine
whether Meadows had died, as part of Camelot's life insurance policy
on him. J. Stewart rules that defendant did not contend that the
Camelot policy prevented him from obtaining life insurance or reduced
the value of his identity, and thus he cannot show the policy
exploited his identity.
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IMMIGRATION
USA v. Pineda-Arrellano, July 17
Defendant, who challenged his plea and sentence
for illegal re-entry, claimed that the trial court improperly treated
defendant's prior felony conviction as a statutory ground for a
sentence enhancement rather than as an element of the offense. J.
Jones rules that this argument is no longer grounds for an appeal
because to require such would put a defendant's criminal record before
the jury and no defendant would want that. Affirmed.
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REVISION
USA v. Herrerra-Montes, July 17
The court issues a revised opinion.
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ARBITRATION
JP Morgan Chase & Co. v. Conegie, July 16
JP Morgan Chase challenged the denial of a motion
to compel arbitration, issued after the district court ruled that
defendant's mother could not sign a nursing home agreement containing
the arbitration clause on defendant's behalf because no agency
relationship existed. J. Benavides rules that defendant's mother could
bind her to the agreement because defendant admitted she did not have
the capacity to sign the agreement.
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ADMIRALTY
Park v. Stockstill Boat Rentals Inc., July 16
Plaintiff sought damages for an injury suffered
at work on defendant's boat. J. Garza rules that the record is devoid
of evidence that defendant violated a statute or Coast Guard
regulation, and the Jones Act does not prohibit seamen from working
more than 12 hours, but merely prevents employers from requiring
seamen to work more than 12 hours. Affirmed.
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EMPLOYMENT
Alvarado v. Texas Rangers, July 16
A female applicant claimed that she was denied an
appointment to the famed law enforcement organization, the Texas
Rangers, because she is female. J. Garza rules that issues remain as
to whether plaintiff's non-selection to the Rangers was an adverse
employment action, since the Rangers are viewed as an elite unit and
appointment to the Rangers, according to the Department of Public
Safety, is one of the most competitive goals to which a law
enforcement officer may aspire. Reversed.
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EMPLOYMENT
McCoy v. City of Shreveport, July 13
[Amended opinion.] A police Lieutenant challenged
the dismissal of her discrimination suit, in which she claimed to have
been treated differently because of her race and sex. The appeals
court rules that plaintiff was not demoted, suffered no reduction in
salary and was paid in full while on leave to deal with emotional
issues and thus suffered no adverse employment action. Also, the
Lieutenant was relieved of her job duties only at her own request and
these actions taken together show the department did not attempt to
encourage plaintiff's resignation. Affirmed.
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CIVIL PROCEDURE
Alice L. v. Dusek, July 12
Dusek sought to stay proceedings pending her
interlocutory appeal of the district court's denial of qualified
immunity in a Title IX suit. The appeals court rules that the district
court may compel discovery disclosures related to plaintiff's claims
because doing so would not interfere with any other aspect of Dusek's
appeal.
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EMPLOYMENT
Nasti v. Ciba Specialty Chemicals, July 12
Plaintiff claimed she was fired because of her
gender and in violation of the Family and Medical Leave Act after she
was fired while on disability leave. J. Stewart rules that summary
judgment for defendant is proper because the evidence, taken together,
shows that the employer fired plaintiff for falsifying a report.
Affirmed.
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TRUSTS
Lewis v. Hunt, July 12
Trustees filed suit in Louisiana state court to
obtain instructions regarding the validity of certain provisions of a
trust instrument, and named the United States as a party on grounds
the government had waived sovereign immunity. J. Dennis rules that the
allegations of the complaint do not establish that the government had
or claimed a lien on trust property, and thus plaintiffs may not
assert claims against the government.
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EMPLOYMENT
Berquist v. Washington Mutual Bank, July 12
An employee claimed he lost his job because of
his age. J. Stewart rules that summary judgment for the company is
proper because plaintiff admitted he lacked credit review skills
required of his position following a merger and he refused to
cooperate with supervisors to accommodate a transfer. Affirmed.
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EMPLOYMENT
McCoy v. City of Shreveport, July 11
A police lieutenant challenged the dismissal of
her discrimination suit, in which she claimed to have been treated
differently because of her race and sex. The appeals court rules that
plaintiff was not demoted, suffered no reduction in salary and was
paid in full while on leave to deal with emotional issues and thus
suffered no adverse employment action. Also, the lieutenant was
relieved of her job duties only at her own request and these actions
taken together show the department did not attempt to encourage
plaintiff's resignation. Affirmed.
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SENTENCING
USA v. Grant, July 11
Defendant claimed he was entitled to a further
reduction of his sentence for drug distribution based on his
cooperation with the government, but the trial court ruled that the
government's failure to move to reduce the sentence deprived the court
of authority to grant a further reduction. J. Stewart rules that the
government did not have to apprise the trial court of defendant's
cooperation in other cases and defendant could not show illicit motive
on the part of the government. Affirmed.
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SENTENCING
USA v. Ikechukwu, July 10
Defendant stole U.S. mail and forged over $2.2
million in stolen checks, but claimed a sentence enhancement did not
apply because he was not a Post Office employee. J. Garza rules that
the enhancement specifically only applies to Post Office employees,
and if the sentencing commission wanted it to apply to all people who
handle mail in a professional capacity the Commission could have said
so. Vacated.
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TORT
Bagley v. Albertson's, July 9
A woman sued a grocery chain for a slip and fall
incident, but the trial court granted the company summary judgment. J.
Smith rules that plaintiff presented testimony from store employees
and firemen that the large puddle that caused the slip and fall
appeared to have been in the aisle for some time. Summary judgment
reversed. |
