U.S. Fifth Court Of Appeals Convenes At Baylor Law School

by Alan Hunt

NOTE TO NEWS EDITORS:* Cameras are not permitted in the courtroom while the court is in session. The judges will, however, be available for pictures in the courtroom at 8 a.m. on Monday.

A three-judge panel of the United States Court of Appeals for the Fifth Circuit will visit Baylor University Law School Monday through Thursday, April 5-8, to hear oral arguments in 16 cases. The hearings, which are open to the public, will be held in the Jim Kronzer Appellate Advocacy Classroom and Courtroom (Room 127) in the Sheila and Walter Umphrey Law Center.
The court bench will include Chief Judge Carolyn Dineen King, Judge Thomas M. Reavley and Judge Emilio M. Garza.
Baylor Law Dean Brad Toben said he has urged law students to take full advantage of "this excellent learning opportunity" provided by the court, which ordinarily hears arguments at the U.S. Courthouse in New Orleans. Associate Dean Leah Jackson said the court is scheduled to hear arguments in five cases Monday, four on Tuesday, four on Wednesday and three on Thursday.
"Arguments will begin at 9 a.m. each day," Jackson said. "For each case, both sides will be allowed 20 minutes each, in most cases, with 30 minutes per side allowed in a few of the cases. Most lawyers use every minute they are allotted, but not all. Therefore, most cases will take approximately 30 minutes to 45 minutes, with the next case beginning immediately upon the conclusion of the previous one."
She described the hearings as an "incredible opportunity to observe appellate lawyers and judges at work." However, access to the courtroom will be restricted during the hearings to avoid disrupting the proceedings.
"Students and the public will be able to enter or leave the courtroom only in between arguments," she said. "We will have a live video feed into classroom 122 and people can come and go at will in that room."
This will be the first time the Fifth Court of Appeals has convened at Baylor Law School's new "home," the Sheila and Walter Umphrey Law Center, which opened for use in August 2001. The court last visited Baylor in 1998, when the Law School was located at Morrison Constitution Hall on South Fifth Street.
Baylor Law School also has twice hosted the Texas Supreme Court - first in 1998 at Morrison Hall, the court's first-ever venture outside of Austin since a constitutional amendment allowed the justices to hear cases outside of the state capital, and then again in 2002 before an overflow crowd in the Kronzer Courtroom at the Umphrey Law Center.

ADDITIONAL NOTE: Following this release are case synopses for all the cases with an approximate start time listed. The synopses have not been reviewed by the judges hearing the arguments nor the lawyers for the parties in the cases. The synopses should not be relied upon nor used for any purpose other than to provide individuals who will attend the oral arguments with a general understanding of the facts and issues of each case.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BAYLOR LAW SCHOOL, WACO, TEXAS

The following case synopses were prepared by a Baylor Law School student for the purpose of providing general information to Baylor law students about each case. The synopses have not been reviewed by the judges hearing the arguments nor the lawyers for the parties in the cases. The synopses should not be relied upon nor used for any purpose other than to provide individuals who will attend the oral arguments with a general understanding of the facts and issues of each case.

Monday, April 5, 2004

9:00 a.m. No. 03-40741 United States v. Jose Sarmiento-Fuenes, Appellant

Topic: Federal Sentencing Guidelines

Facts: Appellant was charged by indictment for being found present in the United States after having been deported following an aggravated felony conviction. Appellant's sentence was enhanced under federal sentencing guidelines because one of appellant's felony convictions was a conviction for sexual assault under Missouri law. The court considered this conviction for sexual assault a "crime of violence" which warrants sentence enhancement.

Issue: Does sexual assault as defined under Missouri law constitute a "crime of violence" for purposes of federal sentencing guidelines?

Analysis: Appellant contends that since there is no element of force specifically stated in the statute that the crime is not a "crime of violence" which requires the use of physical force. The appellee contends that force does not have to be an element specifically listed in the statute as long as some form of physical force is involved. The appellee contends that the mere physical penetration during sexual activity is what constitutes the use of physical force.

Issue 2: Are the provisions under 8 USC ' 1326 b(1) and (2), which allow for sentence enhancement because of a previous felony or aggravated felony, unconstitutional in light of the Supreme Court's ruling in Apprendi v. New Jersey?

Analysis: Even though the issue raised by the appellant has been decided by the Supreme Court in Almendez-Torress v. United States, 523 U.S. 224 (1998), the appellant argues this point simply to preserve it for appeal at the Supreme Court level. The appellant believes that the recent case of Apprendi v. New Jersey, 530 U.S. 466 (2000), shows that prior convictions that increase a statutory maximum penalty should be treated as elements to be charged in the indictment and proved to a jury beyond a reasonable doubt. The appellee once again states that the question has already been resolved by the Supreme Court, but even applying the appellant's reasoning, the appellee explains the indictment did allege that the appellant had been convicted of an aggravated felony and the appellant did not contest at sentencing that he had been convicted of felony sexual assault.

Approx. 9:30 B 9:40 a.m.* No. 03-50507 - United States v. Deloitte and Touche, Medicaid Claims Solutions of Texas, Inc., and National Heritage Life Insurance Co.

Topic: False Claims Act and Qualified Immunity

Facts: In 1998, appellants (Barron), on behalf of the United States Government, brought suit against appellees under the False Claims Act alleging that they had fraudulently billed Medicaid for School Health Related Services. This suit was dismissed on February 17, 1999. In June of 1999, the Senate Finance Committee held hearings on the issue of fraudulent billing of Medicaid in schools. In September of 1999, appellants re-filed the claim originally brought in 1998. The district court held that under the False Claims Act, it did not have jurisdiction.

Issue 1: Did the district court have jurisdiction over appellant=s claim under the False Claims Act?

Analysis: Both parties focus on the case of US v. Lockheed Martin Engineering and Science Services Co., 336 F.3d 346 (5th Cir. 2003), which explains when a court may have jurisdiction under the Federal False Claims Act. For a court to have jurisdiction, the court must determine (1) whether there has been a public disclosure of allegations or transactions (2) whether the action is based upon such publicly disclosed allegations, and (3) if so, whether the realtor is an original source of the information. Both parties agree that the 1999 Senate Finance Committee hearings constituted a public disclosure. As to the second element, appellants contend that there complaint filed in 1999 is substantially identical to their 1998 complaint which was filed before the hearing. Appellees argue that the question is not a matter of time but whether the action is supported by or substantially similar to the public disclosure. As to the third prong, the parties disagree as to whether or not one must have direct and independent knowledge of the information contained within the public disclosure or whether or not one must have direct and independent knowledge of the information found within the complaint. Appellants contend that they had independent knowledge of the information contained within the complaint, and thus jurisdiction is acceptable.

Issue 2: Was appellee, National Heritage Insurance Company, immune from suit under the Eleventh Amendment?

Analysis: NHIC is a for profit corporation whose primary role with respect to School Health Related Services is to pay claims for services rendered to students by eligible providers pursuant to guidelines and rates set by the state. Appellees argue that appellant's allegations arise solely from the appellees capacity as an agent of the state and any remedy obtained by the appellant in this case would compel state action and inevitably impact the state treasury. Appellees argue that since the corporation is a for profit organization it enjoys a certain level of autonomy and cannot qualify as an agent of the state.

Approx. 10:15- 10:30 a.m.* No. 03-60759 - Amanda S. May v Higbee Company, Et Al., Appellants

Topic: Arbitration

Facts: Appellee filed suit in federal district court against the appellant in this case alleging that she had been denied a promotion because she was a woman. Under the Rules of Arbitration enacted by her employer, the appellee would have to arbitrate this claim. The district court held that the appellee was not required to arbitrate because there was no mutual consent as to arbitration due to ambiguities in the agreement to arbitrate.

Issue: Was there an agreement to arbitrate?

Analysis: This case primarily focuses on basic principles of contract law. The appellee contends that the document which served as the agreement to arbitrate was a document signed by the appellee entitled "Acknowledgement of the Receipt of Rules of Arbitration." Appellee contends that such a document is ambiguous because the title only states that the document shows that one received the rules, not whether or not one actually accepts them. Based upon this ambiguity, the appellee applied the parole evidence rule and points to a conversation appellee had with her supervisor in which she was told that signing the document would not bind her to the Rules of Arbitration. Because of such evidence and ambiguities, the appellee contends that she never assented to the Rules of Arbitration and thus there was not an agreement to arbitrate.

Appellant contends that the basis for the agreement to arbitrate was a copy of the Rules of Arbitration distributed to the employees, and that rather than showing a lack of assent to these rules, appellee's signing of the "Acknowledgement of Receipt of the Rules of Arbitration" actually shows that appellee's assent to the Rules of Arbitration. The acknowledgement states that with the signing of the document one has deemed acceptance of the rules by virtue of accepting employment and/or continuing employment therewith. According to the appellant, appellee's continued employment served as her assent to the Rules of Arbitration.

Approx. 11:00 B 11:15 a.m.* No. 03-40711 B Baudelio Castillo, et al., Appellees v. The City of Weslaco, et al., Appellants

Topic: Qualified immunity

This case arose from a rivalry between competing police unions attempting to become the sole recognized collective bargaining agent with the city. The original state court suit over the way openings for corporal and sergeant were filled under the civil service system was removed to federal court after the plaintiffs amended their complaint to include First Amendment claims. Specifically, plaintiffs alleged that the city and several of its managerial level officials made decisions detrimental to the plaintiffs because of anti-union bias. Eventually, only the First Amendment claims remained in the case. Defendants filed a motion for summary judgment asserting qualified immunity. The district court denied the motion and the defendants took this interlocutory appeal.

Appellants make four arguments in support of their claim that they are entitled to qualified immunity. First, Appellees failed to state a First Amendment violation because there is no constitutional right for one union to be recognized over another one. Second, Appellees failed to present a material factual dispute on the question of qualified immunity as to a First Amendment right that was clearly established in the specific factual setting in this case. Third, Appellants neither pled nor proved an "adverse action" against them, a necessary element of a First Amendment claim. Fourth, with respect to Appellant Castellanos, Appellees did not plead or prove a causal connection between his actions and a constitutional violation.

Appellees disagree about what the issues are. They maintain that the proper questions are 1) whether the law was clearly established in 1997 that individuals engaging in speech on matters of public concern are protected by the First Amendment, and 2) whether, in 1997, public employees had a First Amendment right to associate with a union. They label Appellants' factual sufficiency arguments "inappropriate" and refer to other issues raised by Appellants as "red herrings."

Approx. 11:45 a.m. - noon* No. 03-50608 B Christy McCarthy, By and Through Her Next Friend Jamie Travis, et al., Appellees v. Karen F. Hale, in Her Official Capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation, et al., Appellants

Topic: Official immunity

Class action lawsuit by individuals suffering from mental retardation or developmental disabilities such as autism or cerebral palsy against the heads of the Texas Department of Mental Health & Mental Retardation, the Texas Health and Human Services Commission, and the Texas Department of Human Services. The plaintiffs sought injunctive and declaratory relief under Title II of the Americans with Disabilities Act, ' 504 of the Rehabilitation Act, and ' 1396a(a)(3) of the Medicaid Act. The state officials moved to dismiss on Eleventh Amendment immunity grounds and the district court denied. The defendants filed an interlocutory appeal.

Both sides base their appellate arguments on Ex parte Young, 209 U.S. 123 (1908). Ordinarily, a state official is immune from private suit because he or she acts as a representative of the state. However, when the official violates federal law or the Constitution, he or she is acting outside the state's authority and loses Eleventh Amendment immunity.

Appellants maintain that before a Young suit can succeed, the plaintiff must assert that the official violated a federal right not merely a federal law. They contend that the district court erred in holding there is a right to a due process hearing under the Medicaid Act when the state fails to provide community-based services "with reasonable promptness," as the Act requires, because the court already had determined there is no federal right to receive the services "with reasonable promptness." That is, a due process hearing is necessary only when one is deprived, or about to be deprived, of an underlying substantive right. Further, they argue that neither Title II of the ADA nor ' 504 of the Rehabilitation Act is constitutional as applied to them. Title II, they assert, is invalid under both ' 5 of the Fourteenth Amendment and the Commerce Clause or, if proper Commerce Clause legislation, it violates the Tenth Amendment. As for ' 504, they argue it does not comply with the Spending Clause requirement that funds accepted by the states must be related to the Congressional purpose for providing the funds.

Appellees contend that at the immunity stage, the court should be concerned only with whether four requirements are met: 1) whether the suit is against state officials and not the state itself; 2) whether it seeks prospective relief only; 3) whether the plaintiffs allege a non-frivolous violation of federal or constitutional law; and 4) whether the suit implicates "special sovereignty interests." They claim they clearly are suing state officials for prospective relief and that a "state's interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young." Finally, they argue that the merits of the claims are not at issue at this stage, only whether the claims are "wholly insubstantial and frivolous."

The United States has intervened in support of the Appellees. In its brief, the United States argues that Appellants' constitutional arguments regarding Title II and ' 504 will be ripe for decision only if the Plaintiffs prevail on remand. Alternatively, it asserts that the statutes are valid exercises of Congressional power.

TUESDAY, APRIL 6, 2004

9:00 a.m. No. 03-30750 - Chadwick E. Wells, Appellant v. City of Alexandria; John Hamernick; William Gerald Alwell

Topic: Employment discrimination

Facts: Appellant alleges that appellee while acting in the course and cope of his employment intentionally assigned him to job duties that exceeded his treating physician's post knee surgery restrictions. Appellant also contends that the actions were in retaliation for appellant reporting to the authorities what he thought to be illegal activities on the part of his employer. As a result of such actions, appellant was forced to quit his job. The district court granted defendant's motion for summary judgment.

Issue: Was the district court's granting of the defendant's motion for summary judgment on the issues of (1) whether or not the employer's actions were intentional, (2) whether the acts were in retaliation, and (3) whether there was a constructive discharge, correct in light of the evidence presented by the appellant in this case?

Analysis: As to the intentional tort of the employer, the appellant argues that where state of mind is an essential element, this is an issue that the jury must decide and is not an appropriate ground for summary judgment. Appellee argues that evidence of intent can be considered and that in this case there was no evidence of that intent. As to the retaliation claim, the appellant claims that even though the Louisiana State Police did not find appellee had violated any laws, there is still evidence which shows that the employer did in fact commit a crime. The appellee contends that since the police found no violation of the law, then there can be no retaliation claim. As to the constructive discharge claim both parties argue as to whether or not there was evidence to show that conditions were so unpleasant that the appellant felt compelled to resign.

Approx. 9:30 - 9:40 a.m.* No. 03-60201 - Bassel Nabih Assad, Petitioner v. John Ashcroft, Etc. (Cons. w/No. 03-60323 Patel v. Ashcroft)

Topic: Procedural Due Process

Facts: Removal proceedings were commenced against the appellant by the INS. The appellant argued a good faith marriage waiver. After hearing testimony, the Immigration Judge stated that appellant did not qualify for such a waiver. Counsel for the appellant failed to timely file an appeal to this decision, and as a result, the appellant filed a motion to reopen the case with the Board of Immigration Appeals (BIA). The BIA refused to reopen the case.

Issue: Did the BIA violate the appellant's procedural due process rights by holding that the appellant was not prejudiced by his attorney's ineffective assistance of counsel?

Analysis: Appellant contends that since he did not have the opportunity to present his appeal, the proceedings in front of the Immigration Board were rendered fundamentally unfair. Appellant contends that the failure to present his appeal is per se substantial prejudice. If prejudice is not inherent per se, then the appellant believes that the record shows that if the appeal had been brought, he could have made a strong showing that the Immigration Judge erred in denying him the good faith marriage waiver. In the alternative, the appellant argues that the denial of the motion to reopen was an abuse of discretion on the part of the BIA, because contrary to what the district court stated, there was a showing of substantial prejudice.

Appellee initially argues that the court does not have jurisdiction to hear this case, because the decision to refuse to reopen for failure to establish prejudice is a discretionary decision by the board. The appellee also contends that because there is no right to counsel in removal proceedings, ineffective counsel cannot be imputed to the State. In addition, there is no liberty interest in discretionary relief, such as whether an alien qualifies for a waiver. As for appellant's argument that the record shows that he was substantially prejudiced, the appellee contends that in the motion to reopen there were no facts which showed that the defendant was prejudiced and that even the new arguments brought before the court are still not sufficient.

Approx. 10:15 -10:30 a.m.* No. 03-60323 - Jigneshkumar Natvarla Patel, Petitioner v. John Ashcroft, Etc. (Cons. w/No. 03-60201 Assad v. Ashcroft )

Topic: Substantive due process

Issue: Did the Board of Immigration Appeals violate appellant's substantive due process rights by denying a motion to reopen?

Facts: INS charged the appellant with removability from the United States as an alien who procured a visa through marriage fraud. Appellant applied for relief but the immigration judge denied the application. Appellant filed with the Board of Immigration Appeals a motion to reopen his removal proceedings alleging ineffective assistance of counsel in the original removal proceeding. He also requested an extension of his voluntary departure period. The BIA did not address the voluntary departure extension and denied the motion to reopen

Analysis: Appellants contend that there was a violation of substantive due process where the immigration judge shifted the burden of proof by first having the appellant assert claims for relief from removal, rather than having the government first establish removability by clear and convincing evidence. Appellant also contends that there was a violation of due process when the judge failed to inform him of relief available to him in the form of a waiver from the allegedly fraudulent first marriage. Appellant believes that the BIA's refusal to address the issue of whether or not the time before voluntary departure could be extended kept the appellant from perfecting his appeal while still a resident of this country, and thus there was a violation of due process. Appellant further alleges that the board's response to the motion to reopen based upon ineffective assistance of counsel ignored all of the facts stated in the motion to reopen, and thus the hearing was fundamentally unfair.

Appellee contends that the appellant's failure to raise an issue in the first instance before the BIA bars the court's consideration of the issue. Appellee believes that the decision as to ineffective assistance of counsel was made in the pursuit of discretionary relief, and thus there was no denial of due process. Finally, Appellee argues that the granting or withdrawing of infinite privileges of visitation within this country are matters of grace not of right, and thus the lack of mention by the BIA was not a violation of due process.

Approx. 11:00 - 11:15 a.m.* No. 03-41088 Joshua Rios, Et Al.(Canales), Appellants v. Doyle Wayne Scott, Etc., Et Al

Topic: Eighth Amendment

Facts: Appellants in this case are the wife and son of an inmate stabbed to death by another prisoner at the Coffield Unit of the Texas Department of Criminal Justice. Appellants contend that the named appellees, including a security guard and several supervisors at the prison, were deliberately indifferent as to the safety needs of the deceased, Mr. Rios. Appellants allege that appellees violated Rios' rights under the Eighth Amendment. The district court dismissed all claims against the prison officials.

Issue: Can state prison officials be held responsible under the Eight Amendment for the death of a prison inmate as the result of a fight between one inmate and another?

Analysis: In accordance with Farmer v. Brennan, 511 U.S. 825 (1994), the appellants contend that under the Eighth Amendment, prison officials have a duty to protect prisoners from violence at the hands of others. Appellants contend that prison officials breached this duty through their indifference to the risks of harms to other prisoners. According to the appellants, based upon Farmer v. Brennan, a prison official cannot escape liability for deliberate indifference by stating that he did not know that the complainant was likely to be assaulted by the specific person that eventually committed the act. Appellants contend that the guard was indifferent for not intervening and the other officials were indifferent because they were aware of a substantial risk of harm to inmates in the Coffield unit and did not act accordingly. Appellees contend that the officials and the guard are entitled to qualified immunity. As to the guard there is no constitutional duty for a guard to immediately stop an attack. Further, the Appellees contend that appellants failed to present any evidence that the supervisors participated in acts found to be unconstitutional or implemented unconstitutional policies.

Approx. 11:40 a.m.- noon* No. 03-50820 - Larry D. Skinner, Appellant v. San Felipe Del Rio Consolidated Independent School District, Et Al

Topic: Attorney's fees

Facts: The appellant, a high school girls' basketball coach, brought several causes of action against the school district, after being reassigned to another position. The school district alleges the reason for the reassignment was the coach's inability to cooperate with parents, as well as other disciplinary problems. Appellant contends that he was the victim of racial discrimination. The district court granted the school district's motion for summary judgment and awarded attorneys fees to the board concluding that the appellant's claims were frivolous.

Issue 1: Whether the district court erred in awarding attorneys fees to the defendant?

Analysis: The arguments for both sides focus on the test set forth in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1980). Under this case, a court may award attorneys fees to a defendant if the plaintiff's action was frivolous, unreasonable, or without foundation. According to the appellant, if there is evidence to establish a prima facia case then the claim is not frivolous. The appellant argues that it is improper for the court to consider the ultimate merits of the case. Appellant believes that rather than applying the appropriate standard for determining if a claim is frivolous or groundless, the court conducted a sort of post hoc analysis and incorrectly applied the standard used in deciding a motion for summary judgment. In addition, the appellant argues that even if the merits are considered, the record itself does not support a finding that the claim was frivolous, unreasonable or groundless.

Appellee states that because the standard in Christianburg is whether the case is lacking in merit, one has to consider the merits of the case. Appellee argues that if a mere showing of a prima facia case is enough, then the rule in Christianburg would not serve the stated purpose of protecting defendants from burdensome litigation having no legal or factual basis. The appellee looked to other factors to help answer the question of whether the claim was frivolous, such as whether the defendant offered to settle and whether the district court held a full blown trial or dismissed the case.

Issue 2: Whether the district court erred in its application of the lodestar method of calculating attorney's fees?

Analysis: The appellant also argues that the attorney's fees were incorrect because the appellee provided the court with a figure for total amount of time spent on the case, but provided no billing records or any other evidence to support this figure. Appellant also argues that the appellee presented no evidence that any exigent time restraints were imposed or that counsel reasonably had to refuse other work while trying this case. Appellee contends that at the trial court level, the appellant never objected to the lodestar amount, and as a result, he cannot raise this issue for the first time on appeal.

WEDNESDAY, APRIL 7, 2004

9:00 a.m. No. 03-40353 - United States v. Ahmed Koffi Henry, Appellant

Topic: Search and seizure

Facts: Appellant was indicted for one count of possessing forged securities. Appellant moved to suppress evidence obtained after a traffic stop. During the stop, the officer spoke with the driver and the passengers. Both driver and passenger appeared nervous and suspicious and according to the officer gave very broad answers that lacked sufficient detail when asked about where they were going. The officer testified that because the individual was increasingly nervous and wearing baggy clothing, he pat searched him. During the pat he discovered a fake driver's license. Subsequent to this, the officer stated that he asked for consent to search the vehicle and the appellant verbally consented. The officer looked in the trunk and discovered computer equipment and a briefcase with forged checks in it. After the indictment, a plea agreement was reached in which the government agreed to not take any position concerning whether or not the appellant=s sentence should run consecutively or concurrently with an earlier sentence.

Issue 1: Was the stop of appellant's vehicle unconstitutional in scope and duration?

Analysis: The appellants contend that the officer's questions extended the scope and duration of the traffic stop by asking questions not necessary to fulfill the purposes of the traffic stop. Appellant contends that the actions witnessed by the officer were not enough to amount to a reasonable suspicion. The appellant acknowledges that such questions could be asked while a computer check is running, but in this case the computer check did not take place until after the defendant had been transported to jail. As for the appellant's consent to the search, the appellant argues that the consent was not an independent act of free will because of the close proximity of the illegal conduct and the consent, the absence of intervening circumstances, and the flagrancy of the initial misconduct. Appellee contends that under the totality of the circumstances, the officer's actions were acceptable. The appellee admits that if the court were to find a Fourth Amendment violation and such violation preceded the consent, it is unlikely that the court could find that the consent was an independent act of free will; so as to the issue of consent, the government once again argues that there was no Fourth Amendment violation.

Issue 2: Did the government breach its plea agreement?

Analysis: Appellant contends that when the judge asked if the government objected to the downward departure and the government responded, the government took a position on whether or not the sentences should run consecutively or concurrently. Appellee contends that the government was merely responding to an accusation that the government had acted in a vindictive manner by prosecuting the appellant some twenty months after the indictment. Appellee explains that the statements made by the attorney for the government recognized that the court was in a position to make a just decision for the sentencing and at no time did the attorney tell the court what sentence should be handed down.

Approx. 9:30 B 9:45 a.m.* No. 03-50795 B Federal Trade Commission v. Par 3 (Assail) Inc., Appellant

Topic: Due process

Federal Trade Commission obtained a temporary restraining order and then a preliminary injunction against an alleged deceptive telemarketing operator. The PI broadened the scope of the TRO by including Par 3, Inc. (the appellant here) as a subsidiary of the original defendants. Par 3 moved to dissolve the PI as to it; the district court denied the motion.

Par 3 argues that the injunction violates its right to due process because it was not named as a defendant in the original proceeding, was not served with process, is not a subsidiary of any named defendant, and is not controlled by the named individual defendant in the original suit. The FTC contends that Fed. R. Civ. P. 65(d) extends to all persons "in active concert or participation" with the enjoined parties if the nonparty received actual notice of the order. There is no dispute that Par 3 had notice of the order, and the FTC asserts that the evidence supports the district court's finding of a "strong indication" that Par 3 is an organization "formed by [the individual defendant], that assets of which he regularly uses for his own benefit."

Approx. 10:15 -10:30 a.m.* No. 03-30613 - Iberia Credit Bureau, Inc., Etc., Et Al v. Cingular Wireless, L.L.C., Sprint Spectrum Co. LP, and Centennial Beauregard Cellular LLC, Appellants

Topic: Arbitration

Facts: The appellees in this case, nine cellular phone customers, sued the appellants, four out-of-state wireless service providers, alleging that the providers breached their contracts and violated the Louisiana Unfair Trade Practices Act. As part of their cellular agreement, appellees agreed to resolve contract disputes through arbitration. Appellees contend that the agreement to arbitrate was unconscionable, and the district court agreed.

Issue: Was the agreement to arbitrate an unconscionable contract of adhesion?

Analysis: Appellees contend that the arbitration agreement was a take it or leave it contract that was unconscionable due to certain sections of the agreement such as the unilateral right of the appellant to alter the agreement, prohibition against class actions, the small print of the arbitration provision, lack of mutuality, and prohibitions against discovery. The appellants state that the appellee's argument, and the ruling of the district court, is contrary to the strong federal policy in favor of arbitration. Appellants explain that the Federal Arbitration Act was enacted so arbitration agreements would be treated the same as any other contract and not singled out as being somehow inherently suspicious. Appellants believe that the arguments by the appellee are based upon such unwarranted suspicion.

Approx. 11:15 -11:30 a.m.* No. 03-20446 B Ethan Brillon, Etc. v. Klein Independent School District, Appellant

Topic: IDEA and expert witnesses

Plaintiff/Appellee Brillon is an elementary school student with Down syndrome. Under the Individuals with Disabilities Education Act (IDEA), he is to be educated with nondisabled students in regular education classrooms to the maximum extent appropriate. His parents disagreed with the school district's proposal to remove him from his only regular academic class for second grade and, after being unsuccessful with administrative remedies, filed suit in federal district court. The court determined that the school district should place Brillon in regular education classes for science and social studies but could place him in special education classes for other academic subjects.

Appellant argues that the district court erred in requiring it to place Brillon in regular academic classes because he does not perform at his grade level in science and social studies. It also objects to the lower court=s admission of testimony of an expert witness and to the award of expert witness fees to Brillon's expert. Brillon contends the school district improperly requires disabled students to perform at their grade level when the IDEA requires only that they achieve their individualized education program. Thus, he maintains the district court was correct to order him educated in a regular academic setting for science and social studies, but wrongly ordered him to attend special education classes for his other academic subjects. He also asserts that the IDEA allows for the kind of expert testimony at issue here and that Appellant did not object when the testimony was offered. Finally, he contends that payment of expert witness fees is consistent with the text of the IDEA, its legislative history, and its stated purposes.

THURSDAY, APRIL 8, 2004

9:00 a.m. No. 03-10167 - United States v. William Clark Taylor, Appellant

Topic: Federal firearm charges

Facts: Appellant was charged with possessing a firearm silencer after materials that could be used in the assembly of a silencer were found at the appellant's residence. Of the materials tested, none of the materials "diminished the report of a firearm." Such "diminished report" is an essential element in determining whether or not an object is by definition a silencer. At the close of the government's case, appellant made a general Motion for Judgment of Acquittal and the motion was denied. The appellant was also convicted of perjury because of his testimony that he was not in possession of a silencer, which appellee contends is contrary to earlier statements he made to a government agent. Appellant appeals both the denial of the motion and the conviction for perjury.

Issue: Did appellant possess a silencer as defined under federal law?

Analysis: According to the appellee, the government is not required to prove that the silencer in question actually provided a decibel level reduction when a weapon was fired, rather the language of the statute states that possession of mere parts may constitute a violation. Appellee views the materials as parts that could be assembled into a functioning silencer. According to the appellant, the materials found were not just parts that could be assembled into silencers, rather the materials themselves were complete silencers that did not lower the report of a firearm. The appellant further points out that there is no evidence that any assembly of the parts occurred or that such assembly would have produced a functioning silencer.

Approx. 9:30 B 9:45 a.m.* No. 03-40961 - Pensions Benefit Guaranty Corp. v. The Wilson N. Jones Memorial Hospital, Appellant

Topic: Administrative law

Facts: Appellant hospital terminated its pension plan. After the benefit distributions had been made, the Pension Benefit Guaranty Corporation (PBGC), a government agency, audited the plan and made an initial determination that the benefits had not been distributed correctly. The lower court agreed that the agency=s administrative determination was reasonable.

Issue: Did the lower court err in deferring to the PBGC=s litigation position?

Analysis: The appellant contends that the court erred because the agency's position in court was presented for the first time in briefs to the court and not articulated in the agency's initial determination. Appellant further contends that deference should have been given to the plan fiduciaries determination of benefit entitlements, because the assets were distributed in accordance with the provisions of the plan and any applicable regulations. The appellees rely upon inaccuracies in certain IRS and ERISA provisions to establish that the benefits were not distributed properly.

Approx. 10:15 B 10:30 a.m.* No. 03-40973 - Piggly Wiggly Clarksville Inc. Et Al., Appellants v. Interstate Brands Corp., Etc.

Topic: Class certification

Facts: Appellants sought class certification of a class of direct purchasers of bread products in Louisiana and cake products in Louisiana and Texas between 1977-1993. Appellee is the last of four Texas bakery companies alleged to have participated in a conspiracy to fix the prices of bread and cake products during this time. Appellants supported their motion for class certification with an affidavit of an antitrust economist. The district court concluded that the appellants had not satisfied predominance as to class wide damages and fraudulent concealment.

Issue: Did appellants satisfy predominance as to class wide damages?

Analysis: According to the appellants under Rule 23, appellants do not have to prove class wide impact or damages based upon one single formula, rather all appellants have to do is propose one or more valid methods that would reasonably estimate the amount. Appellees contend that the mere mention of several possible formulas is not sufficient to show class wide predominance, especially when none of the formulas have been tested in this case. In fact, the expert never said that any of the formulas would work in this instance. Appellants also contend that the District Court failed to consider the affidavit of their expert to support their position, and if it did, it impermissibly weighed the merits of the appellants expert opinion at the certification stage. Appellees respond by discussing Bell Atlantic Corp v. AT&T Corp., 339 F.3d 294 (5th Cir. 2003), which they contend stands for the proposition that mere existence of an expert as to damage formulas is not decisive, because a court can still analyze how the formulas would wok based upon the facts of the case.

Issue: Did appellants establish predominance as to the fraudulent concealment claim?

Analysis: Appellants also contend that predominance as to fraudulent concealment can be met because the focus is on the conduct of the defendant rather than the personal knowledge as to each of the class members. Appellees contend that where a claim has an essential element of reliance then the issue requires individualized proof.