In April 2012, nine Planned Parenthood clinics in Texas (referred to collectively as the Texas clinics) were granted a preliminary injunction halting the enforcement of public funding restrictions that the clinics claimed violated their First Amendment rights.[1. Planned Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 346-48 (5th Cir. 2012).] It was years earlier, in 2005, that Texas created the Women’s Health Program (WHP) to promote health and family planning services for low-income women through a combination of state and federal funds.[2. Id. at 346.] The Texas legislature charged the Texas Health and Human Services Commission (THHSC) with dispensing these WHP funds to different recipients across the state as long as the health care providers did not “perform or promote elective abortions or be[come] affiliates of entities that perform or promote elective abortions.”[3. Id. (quoting Act of June 17, 2005, ch. 816, § 1(h), 2005 Tex. Gen. Laws 2816, 2818).] Despite a legal relationship with the Planned Parenthood Federation of America, the clinics were never denied WHP funds because the THHSC never formally interpreted these restrictions.[4. Id. at 346-47.] It was only in 2011, when Texas reauthorized the WHP, that the THHSC disseminated regulations that defined key terms like “affiliate” and “promote.”[5. Id. at 347 (citing 1 Tex. Admin. Code § 354.1362(1), (6) (2012)).] Believing they could not comply with the restrictions, the Texas clinics filed suit in the United States District Court for the Western District of Texas to block their implementation.[6. Id.] In their suit, the clinics sought declaratory relief and a preliminary injunction against the THHSC.[7. Id. at 346.] They alleged that the restrictions violated their First Amendment rights to free speech and association, as well as their right to equal protection under the laws, because health care providers that associate with hospitals that promote or perform abortions were exempt from the restrictions.[8. Id. For the purpose of standing, the clinics were forced to concede that they promote and affiliate with entities that promote or perform elective abortions. Id. at 347-48.] Granting the injunction, the district court reasoned that the Texas clinics showed a substantial likelihood of succeeding on the merits of each claim.[9. Id. at 348.] The state of Texas appealed the district court’s decision.[10. Id.] The United States Court of Appeals for the Fifth Circuit held that the clinics failed to demonstrate that the new restrictions violated their First Amendment rights and vacated the injunction because there was not a substantial likelihood that the clinics would succeed on the merits of their claims. Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 692 F.3d 343, 352 (5th Cir. 2012).
Louisiana Environmental Action Network v. City of Baton Rouge: The Fifth Circuit Follows the Trend and Finds the Clean Water Act’s Diligent Prosecution Bar Is a Nonjurisdictional Rule, to the Benefit of Citizen Suit Plaintiffs
After witnessing years of pollution by the City of Baton Rouge and the Parish of East Baton Rouge, the most significant obstacle facing the Louisiana Environmental Action Network (LEAN) in its citizen suit under the Federal Clean Water Act (CWA) was overcoming the CWA’s “diligent prosecution” bar in an atmosphere of procedural uncertainty. The litigation in the noted case arose out of alleged violations of National Pollutant Discharge Elimination System (NPDES) permits issued to the city and parish by the Louisiana Pollutant Discharge Elimination System (LPDES).[1. La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 740-41 (5th Cir. 2012).] These permits allowed the city and parish to release pollutants from wastewater treatment facilities provided that certain conditions were met.[2. See id. at 741.] In 1988 and 2002, in response to complaints filed by the United States over the city’s and parish’s noncompliance with the NPDES permits, the district court entered consent decrees to require compliance with the CWA.[3. Id. The 2002 consent decree superseded and terminated the 1988 consent decree. Id.] The 2002 decree provided for less rigid standards and set guidelines for the facilities to achieve compliance.[4. Id.] In 2009, the district court modified the 2002 consent decree to require the city and parish to bring the facilities into compliance by 2015.[5. Id. at 741-42.] Despite multiple consent decrees, LEAN observed that the city and parish continued to violate the requirements of the original NPDES permit and the 2002 consent decree as modified in 2009.[6. Id. at 742.] After providing notice to the city and parish of the alleged violations in both November and December 2009, LEAN filed a citizen suit under the CWA against the city and parish in the United States District Court for the Middle District of Louisiana on March 22, 2010.[7. Id.] In its complaint, after alleging that it met the CWA’s citizen suit notice requirement and that the diligent prosecution requirement was not met by either the Environmental Protection Agency (EPA) or state of Louisiana, LEAN claimed that the wastewater treatment plants violated multiple requirements of the NPDES permit and the 2002 consent decree.[8. Id.] The city and parish subsequently filed a motion to dismiss, citing the 2002 consent decree, which they claimed met the diligent prosecution bar of the CWA.[9. Id. at 742-43.] The district court granted the motion, not on the basis that the diligent prosecution bar was met, but rather on the basis that the defendants’ compliance with the 2002 consent decree mooted LEAN’s claims.[10. Id. at 743.] In doing so, the district court dismissed LEAN’s claims on jurisdictional grounds and therefore did not need to accept LEAN’s well-pled allegations as true or view the facts in the light most favorable to LEAN.[11. See id. at 743-45.] On appeal, the United States Court of Appeals for the Fifth Circuit held that the district court erred in dismissing LEAN’s citizen suit as moot, that the diligent prosecution bar of the CWA is a nonjurisdictional limitation to citizen suits, and that the action should be remanded to the district court to determine whether the diligent prosecution bar precludes the suit on nonjurisdictional grounds. Louisiana Environmental Action Network v. City of Baton Rouge, 677 F.3d 737, 745, 749 (5th Cir. 2012).
United State v. Pickett: The Fifth Circuit Renders Point of Origin Irrelevant in Evaluating the Application of the Border Search Exception
On appeal, the United States Court of Appeals for the Fifth Circuit held that the border search exception applied, regardless of a defendant's point of origin, as long as the defendant crossed a border. United States v. Pickett, 598 F.3d 231, 235 (5th Cir. 2010), cert. denied, 131 S. Ct. 637 (2010).
Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC: The Fifth Circuit Finds Comparative Fault Principle Unaffected By Burden-Shifting Presumption of Fault in Admiralty Case
Reversing the district court, the United States Court of Appeals for the Fifth Circuit held that United could seek contribution from Carnival after settling with Combo, reasoning that contribution can be sought by a settling tortfeasor who releases all claims, that the presumption of fault against a defendant in the case of drifting vessels is not to be applied between codefendants, and that the presumption of fault does not affect the principle that joint tortfeasors are entitled to allocate damages relative to their proportionate degree of fault. Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 2010 AMC 2196 (5th Cir. 2010).
Peterson v. City of Forth Worth: The Fifth Circuit Demands More Than the Demanding Standard of Monell to Establish Municipal Liability under § 1983
Ultimately, the United States District Court for the Northern District of Texas concluded that while Peterson made a colorable claim for the excessive use of force against the individual officers, he failed to meet the rigorous standard necessary to impose municipal liability, and the court consequently dismissed his complaint under summary judgment. Affirming this decision, the United States Court of Appeals for the Fifth Circuit held that twenty-seven claims of excessive force did not amount to an official city policy permissive of excessive force and, thus, the city could not be liable. Peterson v. City of Fort Worth, 588 F.3d 838, 852 (5th Cir. 2009), cert. denied, 79 U.S.L.W. 3195 (U.S. Oct. 4, 2010) (No. 09-983).
Smith v. Xerox Corp.: The Fifth Circuit Maintains Mixed-Motive Applicability in Title VII Retaliation Claims
The United States Court of Appeals for the Fifth Circuit held that the mixed-motive framework applies to Title VII retaliation cases and a plaintiff can present circumstantial or direct evidence to obtain a mixed-motive jury instruction. Smith v. Xerox Corp., 602 F.3d 320, 329, 331-32 (5th Cir. 2010).
Marine Casualty Investigations
This Article will focus primarily on the government entities (e.g., Coast Guard and NTSB) responsible for conducting marine casualty investigations. These formal investigations allow evidence to be gathered and preserved in a more orderly manner than can be done during, or even immediately after, a serious collision, fire, oil discharge, sinking, or other casualty, when response is the primary goal and the “Incident Command Center,” whether run solely by the Coast Guard or in conjunction with other federal and state agencies, is still in full swing.
Maritime Catastrophe Response — Civil and Criminal Counsel Investigation; Illustrative Recent Collision and Platform Case Law; Criminalization of Marine Negligence
To most people, nothing is more fascinating and newsworthy than a maritime disaster. A burning factory in Kentucky or a pipeline oil spill in Utah does not generate the same sense of drama and excitement as an equivalent amount of spilled oil from a burning ship or oil platform in Louisiana, Texas, or anywhere else. This Article partners a panel presentation at the 2011 Tulane Admiralty Law Institute. In this presentation, for illustrative purposes, the authors played back a United States Coast Guard Vessel Traffic Service (VTS) Automatic Identification System (AIS) Electronic Chart Display (ECDIS) for the M/T BOW FORTUNE--M/T STOLT ZULU collision at 81 Mile Point on the Mississippi River above New Orleans at about 0440 hours on May 19, 2006.
The Role of the P&I Clubs in Marine Pollution Incidents
The fire and explosion on the mobile offshore drilling unit Deepwater Horizon and the subsequent release of nearly five million barrels of crude oil into the Gulf of Mexico has been characterized as “the worst environmental disaster America has ever faced.” Although the oil spill occurred while the rig was operating as an offshore facility, among the many issues arising from the disaster is the adequacy of the current limits of liability applicable both to vessels and offshore oil exploration and production facilities under the U.S. Oil Pollution Act of 1990 (OPA 90), and the role of the marine insurance industry in meeting the costs of response and damages caused by such catastrophes. Pollution risks are borne primarily by the owner of the ship or facility concerned, who will normally insure against them, along with other marine liability risks, by separate liability cover. In the case of vessels, this is arranged most commonly by entering the vessel in one of the shipowners' mutual insurance associations, which specialize in providing cover of this kind, and which are more commonly known as Protection and Indemnity Associations, or P&I Clubs. This Article will discuss the law and practice of P&I insurance with particular emphasis on the liabilities arising from major marine pollution incidents.
Hijacked: The Unlikely Interface Between Somali Piracy and the U.S. Regulatory Regime
As of March 4, 2011, 33 vessels and 711 crew members were being held hostage by pirates. The international community has engaged in various efforts to address the continuing problem of pirate hijackings with seemingly little success. The United States has also taken its own swipe at piracy through Executive Order 13,536, entitled “Blocking Property of Certain Persons Contributing to the Conflict in Somalia” (Order), that was issued by President Barack Obama on April 12, 2010. Upon its issuance, the Order created a great deal of confusion and consternation with respect to whether it prohibited the payment of ransom to pirates. The answer as it emerged has proved to be “yes,” “no,” and “maybe” and has resulted in a process whereby applications for guidance with respect to the payment of certain ransoms (and related insurance payments) are made to the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC). The authors of this Article have both been actively involved in the development of the application process and have represented numerous clients seeking guidance with respect to ransom-related payments. This Article explains the Order and its import for piracy situations, and details the authors' experience with both the OFAC guidance process and related procedural and substantive issues that have arisen.