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This is a summary of the issues argued at the Fifth Circuit Court of Appeals on Tuesday, October 6, 2015

On October 5 and 6, 2015, the Bar Association of the Fifth Federal Circuit will host our Annual Appellate Advocacy Seminar in New Orleans.  Cost is $100 for 9.75 hours of Continuing Legal Education, including both an hour of Professionalism and an hour of Ethics.  Attend a two hour writing workshop to hone your brief writing skills, observe oral arguments and get practice tips from seasoned attorneys and sitting judges.  This seminar is an ideal introduction to federal appellate practice, with specifics about Fifth Circuit procedures.  Register Now

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

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The Daily Commentary (sample)

Sample case reviewed on October 1, 2014.
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Sample of Daily Commentaries

EEOC v. Simbaki, Ltd. No. 13-20387


VACATED and REMANDED. (September 17, 2014).

 Posted in Civil Procedure, Sexual Harassment, Title VII

 The Fifth Circuit overrules the District Court's determination that only pro se litigants may invoke judicially-recognized exceptions to Title VII's named-party requirement.  Because parties represented by counsel may too invoke the exceptions to the named-party requirement, the Court vacates and remands the District Court's dismissal of plaintiffs' Title VII lawsuit.

On Appeal from the United States District Court for the Southern District of Texas(Nancy F. Atlas).
Attorney for Appellant - Mary Katherine Strahan, Houston, TX
Attorney for Appellee - Meghaan Cecilia McElroy, Houston, TX

Estate of James A. Elkins, Jr. v. Commissioner of Internal Revenue No. 13-60472

Before STEWART, Chief Judge, WIENER, and COSTA, Circuit Judges.

AFFIRMED in part; REVERSED in part; Judgment RENDERED. (September 15, 2014).

Posted in Taxation

Underlying this tax-related appeal was a suit challenging an alleged estate tax deficiency that resulted solely from the Commissioner's disallowance of the "fractional-ownership discount" applied by the estate in determining the taxable values of their decedent-father's pro rata shares of the jointly stipulated fair market value ("FMV") of 64 original works of modern and contemporary art in which the decedent owned only fractional interests at his death. Noting that it is "never comfortable in disagreeing with, much less reversing, a jurist of the experience, reputation, and respect enjoyed by the Tax Court judge" whose judgment was being reviewed in this case, the Fifth Circuit decides to: (1) affirm the Tax Court's rejection of the Commissioner's insistence that no fractional-ownership discount may be applied in determining the taxable values of decedent's undivided interests in the art work; (2) affirm the Tax Court's holding that the estate is entitled to apply a fractional-ownership discount to the decedent's ratable share of the stipulated FMV of each of the 64 works of art; (3) reverse the Tax Court's holding that the appropriate fractional-ownership discount is a nominal 10% percent, uniformly applied to each work of art, regardless of distinguishing features; (4) hold that the correct quantums of the fractional-ownership discounts applicable to the decedent's pro rata share of the stipulated FMVs of the various works of art are those determined by the estate's experts; and (5) render judgment in favor of the estate for a refund of taxes overpaid in the amount of $14,359,508.21.

On Appeal from the Decision of the United States Tax Court.
Attorney for Appellant - Harry Max Reasoner, Houston, TX
Attorney for Appellee - Arthur Thomas Catterall, Washington, DC

United States v. Teran-Salas No. 13-40884

Before DAVIS, SMITH, and CLEMENT, Circuit Judges.

AFFIRMED. (September 15, 2014).

Posted in Criminal Procedure, Statutory Interpretation

The Fifth Circuit rejects defendant's appeal to the sentence imposed by the District Court after he pled guilty to being an alien found unlawfully present in the United States after deportation. Defendant argues that the District Court misapplied a sixteen-level sentence enhancement based on its holding that his 2011 conviction for possession with intent to deliver between four and 200 grams of cocaine under Texas law qualified as either a "drug trafficking offense" under U.S.S.G. § 2L1.2 of the guidelines or an "aggravated felony" under 8 U.S.C. § 1326(b)(2). Defendant reasons that the Texas statute of his conviction criminalizes the "administering" of drug, and thus proscribes a broader set of conduct than that covered by "drug trafficking offense." The Fifth Circuit acknowledges that Texas's statutory framework leaves open the theoretical possibility that a defendant can be convicted for conduct that would not qualify as a Federal drug trafficking offense, but denies relief based on defendant's failure to establish a realistic probability that Texas would apply its statute in such a manner.

On Appeal from the United States District Court for the Southern District of Texas (Randy Crane).
Attorney for Appellant - Laura Fletcher Leavitt, Houston, TX
Attorney for Appellee - Katherine Lisa Haden, Houston, TX

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