skip to content

skip to navigation

Welcome to the Bar Association of The Fifth Federal Circuit,

Improving and facilitating the administration of justice in the federal courts within the Fifth Circuit.

Learn more about BAFFC »

News Flash

Fair Labor Lawyer by Marlene Trestman

The Clerk of Court for the Fifth Circuit has offered guidance for citation to the record on appeal.  

Get more from your membership with BAFFC. Join us on Facebook, LinkedIn, Twitter, and Google+ to receive rapid updates. Connect with BAFFC today!

Did you know you can register to receive notices in cases of interest in the Fifth Circuit?


The Daily Commentary (sample)

Sample case reviewed on March 18, 2016.
Become a Member to receive Daily Emails

Daily Commentary for February 29, 2016

Before JONES and SMITH, Circuit Judges, and BOYLE, District Judge.

AFFIRMED as MODIFIED. (February 16, 2016).

Stephan Bechuck appealed an order dismissing from his suit, without prejudice, Home Depot U.S.A., Inc., and Advantage Sales & Marketing, L.L.C. ("ASM") and requiring that any suits that Bechuck refiles against those parties be brought in the same Court.   On appeal, Bechuck contended that the District Court lacked jurisdiction to attach the refiling restriction with respect to ASM because Bechuck had already voluntarily dismissed ASM under Federal Rule of Civil Procedure 41(a)(1)(A)(i).  Bechuck further claimed that the sua sponte dismissal of Home Depot was erroneous and that the refiling restriction with respect to Home Depot was improper.  The Fifth Circuit agrees that the District Court lacked jurisdiction to impose the refiling restriction on ASM.  The Court reasons that once Bechuck filed his Rule 41(a)(1)(A)(i) motion, the District Court lacked jurisdiction to attach any refiling restrictions.   Similarly, the Court concludes that the District Court abused its discretion in attaching the filing condition to its Rule 41(a)(2) dismissal of Home Depot.   And while the Fifth Circuit agrees that the District Court erred in dismissing Home Depot, because that dismissal was without prejudice, the Court determines that the error is harmless.  Thus, the Fifth Circuit affirms the District Court's judgment with respect to the dismissal without prejudice of Home Depot and ASM.  And, the judgment with regard to the imposition of conditions restricting refiling against these parties to the Southern District of Texas is affirmed as modified to strike out those conditions. 
On Appeal from the United States District Court for the Southern District of Texas (Lynn N. Hughes).
Attorney for Appellant - Jason Charles Webster, Houston, TX
Attorney for Appellee - Wade R. Quinn, Houston, TX

Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.

VACATED and REMANDED. (February 10, 2016).

Plaintiffs, prisoners awaiting execution in the state of Mississippi, sued under § 1983 in Federal Court seeking an injunction preventing the state from conducting executions with compounded pentobarbital.   Mississippi law provides that "the manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent until death is pronounced." Miss. Code Ann. § 99-19-51.  Plaintiffs sued various state officers seeking an injunction forbidding the use of pentobarbital as contrary to § 99-19-51's requirement of an "ultra short-acting barbiturate or other similar drug" and forbidding the use of compounded drugs which they alleged violated their Eighth and Fourteenth Amendment rights.  The District Court granted a broad preliminary injunction and the State of Mississippi appealed.  Vacating the injunction, the Fifth Circuit reasons that plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims because they have not established a liberty interest in the enforcement of § 99-19-51 and because they have not shown that Mississippi's alleged deviation § 99-1-51 would "shock the conscience."

On Appeals from the United States District Court for the Southern District of Mississippi (Henry T. Wingate).
Attorney for Appellant - Paul Eldridge Barnes, Jackson, MS
Attorney for Appellee - James W. Craig, New Orleans, LA

(February 11, 2016 Order Denying Rehearing En Banc).
(July 21, 2015 Opinion Denying Petition for Review).


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.

DENIED. (February 11, 2016).

The Fifth Circuit denies a petition for rehearing en banc and reaffirms that "'[§]1231(a)(5)'s plain language, relevant regulations, and analogous case law' dictate our conclusion that asylum is not available as relief to an alien who is found guilty of illegal reentry."  Petitioner, a native and citizen of Honduras, was apprehended in March 2006 while illegally entering the United States.  She was subsequently removed from the country.  She returned to the United States the next month.  In January 2012, she was arrested for theft, and her removal order was reinstated the following day.  The Board of Immigration Appeals ruled she could not apply for asylum and was ineligible for withholding of removal or protection under the Convention Against Torture.  Upholding the BIA's ruling, the Fifth Circuit's panel opinion denied her petition for review.  That opinion considered and rejected her claim that she was eligible for asylum, and that the BIA erred by ruling that she could not apply for asylum due to the reinstatement of her removal order.  It further rejected her alternative claim that her parole into the country following the reopening of her case rendered the reinstatement statute inapplicable to her.  Lastly, the panel opinion had rejected petitioner's argument that she was eligible for withholding of removal and CAT protection.

On Petition for Review of an Order of the Board of Immigration Appeals.
Attorney for Petitioner - Andrea Lauren Penedo, Houston, TX
Attorney for Respondent - Carmel Morgan, Washington, DC


AFFIRMED. (February 12, 2016).

Dallas law enforcement pulled over Michael Herrold as part of a routine traffic stop. During the encounter, the officers observed a handgun in plain view. Because he was a convicted felon, Herrold's possession of the firearm was illegal under 18 U.S.C. § 922(g)(1), a charge to which he subsequently pled guilty without a plea agreement. Under the enhanced penalty provisions of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), Herrold faced a statutory minimum of fifteen years imprisonment.  Herrold's previous felony offenses included: (1) possession of lysergic acid diethylamide ("LSD") with intent to deliver, (2) burglary of a building, and (3) burglary of a habitation.  Herrold argued in the District Court that none of these prior convictions qualified as predicate offenses under the ACCA.  Disagreeing, the District Court sentenced Herrold to 211 months in prison.  Without the enhancement, Herrold would have faced a maximum penalty of ten years.  Advancing the same arguments on appeal, Herrold challenged his sentence.  The Fifth Circuit affirms the application of the ACCA sentencing enhancement, agreeing that each of Herrold's prior offenses qualifies as a predicate offense under the ACCA.  The Court resolves that Herrold's arguments - (i) that his conviction for burglary of a building should not qualify as generic burglary, one of the enumerated predicate offenses in ACCA; and (ii) that his conviction for burglary of a habitation cannot qualify as a predicate offense under ACCA because Texas law defines "habitation" to include "vehicles adapted for overnight use" - are both foreclosed by Circuit precedent.  The Court rejects Herrold's argument that his conviction for possession of LSD with intent to deliver is not "a serious drug offense" under ACCA.

On Appeal from the United States District Court for the Northern District of Texas (David C. Godbey).
Attorney for Appellant - James Matthew Wright, Amarillo, TX
Attorney for Appellee - Brian W. McKay, Dallas, TX

Become a Member to receive Daily Emails