Fifth Circuit Update: En Banc Issues And New Cases

While I have been drinking deeply at the "font" of typography, the Fifth Circuit has been cleaning its plate.  Lest we fall behind, a quick update on notable cases and issues of interest on the civil side.

En Banc

• Adar v. Smith (pdf): The court granted rehearing en banc (pdf) of the panel opinion requiring the registrar in Louisiana to issue a new original birth certificate listing the parentage of a same sex couple whose adoption of the child was valid and recognized under New York law where the adoption occurred.  Arguments and briefing to come.
• Castellanos-Contreras v. Decatur Hotels (pdf): A divided en banc court sided with the previous panel opinion reversing an interlocutory summary judgment ruling and holding that foreign hotel workers who were present in the country on H2B visas were properly paid under the FLSA.  The workers had argued that their wages were below minimum wage when one deducts placement fees charged by recruiters, visa application fees, and relocation expenses for which they claimed they were entitled to be reimbursed. Judge Haynes wrote for the majority of the en banc court.

Other New Opinions

• Richards v. Louisiana Citizens (pdf): Not really interesting for the substantive issues involved, the court's refusal to grant appellate sanctions is primarily useful in setting out what the court might look for before sanctions are granted: a silly argument (e.g., income tax is voluntary), going back to an argument that has already been rejected, mischaracterizing evidence, and particularly egregious attempts to misinterpret the law.  In Richards, neither side had pointed to a "white horse" case in its favor.  Judge Stewart wrote the court's opinion.
• Gulf Coast Shell & Aggregate v. Newlin (pdf): Arising out of a failed oyster dredging venture, this case was ordered dismissed by the Fifth Circuit because it did not fall within the admiralty jurisdiction of the federal courts.  The court, in an opinion by Judge Jolly, concluded that the claimant's "Rule D" claims failed because it had an equitable rather than legal claim to title and possession of the vessel, and that its contract and tort claims were not maritime in nature.
• Espinoza v. Cargill Meat Solutions (pdf) holds that Texas law permits an employer to put employees to a three way election: (1) worker's comp, (2) retaining common law workplace injury claims, or (3) an "occupation and temporary disability plan" under the Labor Management Relations Act.  Having picked number 3, the plaintiff's workplace injury claim was preempted by federal law and dismissed for failure to follow the claims procedures under the plan. Judge Prado wrote the court's opinion.  

And finally:

• Griffin v. Lee (pdf) holds that an attorney cannot intervene for his fee in a case where jurisdiction is based upon diversity of citizenship where he is neither diverse nor seeking an amount in excess of the jurisdictional minimum--because 28 U.S.C. § 1367(b) says so.*

And that's the way it was.  Tune in again next week for more document design nerdiana.

 * Not to put too fine a point on it, but Judge Per Curiam expended 15 pages and numerous block quotes saying the same thing, qualifying this opinion as nominee for the Appellate Record Deforestation Award.