The case of Texas Pipeline v. FERC involved a challenge to natural gas regulations as beyond FERC’s statutory authority.   The Court found that the regulations were beyond that authority, and accordingly, did not reach any issues where agency deference under Chevron could be appropriate.   See Op. at 5 (“[A]gencies cannot manufacture statutory ambiguity with semantics to enlarge their congressionally mandated border.”)  The Fifth Circuit has taken a conservative view of agency opinions about statutory authority in other thoughtful opinions, see, e.g., Mississippi Poultry v. Madigan, 31 F.3d 293 (5th Cir. 1994) (en banc) (construing the term “same” in statute governing regulation of poultry processing).

The case of Garriott v. NCsoft presented a challenge to a $28 million judgment for breach of an employee’s stock option contract.  After resolving a liability issue under South Korean law about the employee’s termination, the Court considered whether the judgment impermissibly considered post-breach stock appreciation.  The Court faulted the defendant for not raising its challenge to the damages calculation in a Daubert motion, evidence objection, or charge objection, and rejected the argument under “plain error” review.  Op. at 7-9 (“Displeased with the jury’s decision, NCSoft now asks for a mulligan.”)  The Court also found sufficient direct evidence, consistent with the expert models, as to when the employee would have sold his shares.  Op. at 9 (reminding that damages “may be too speculative if based on ‘assumptions without basis in the real world,'” but that the plaintiff “need not prove damages with mathematical certainty”).

The case of Weaver v. Texas Capital Bank first presented a jurisdictional question under the Rooker-Feldman doctrine.  Texas Capital Bank had obtained a state court default judgment against a guarantor, and contended that the guarantor’s later adversary proceeding attacking the basis for that liability was an impermissible federal attack on a final state court judgment.  The Court disagreed, finding that Rooker-Feldman was not implicated.  Op. at 5-7.  The Court went on to reverse, however, finding that the guarantor’s arguments to the bankruptcy court were defenses to the earlier state court action and thus barred by claim preclusion.  Op. at 8-11.  The opinion thoroughly reviews Texas claim preclusion law and its “transactional” approach to the application of the compulsory counterclaim rule.

Countrywide Home Loans sought to recover certain post-petition attorneys fees in a Chapter 13 bankruptcy case in Countrywide v. Velazquez.  The Court reviewed the provisions of the relevant Deed of Trust, and concluded that the word “and” in the phrase “do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under this Security Instrument” did not require that a recoverable fee involve both the protection of the lender’s interest and the lien.  (Op. at 6-9 (citing Lanier v. Spring Cypress Investments, 1995 WL 489427 (Tex. App.–Houston [1st Dist.] Aug. 17, 1995, no writ)).  The Court “respectfully disagree[d]” with the unpublished affirmance of a different result by another panel earlier this year in Wells Fargo v. Collins.

The Court released a revised opinion in Barber v. Shinseki, in which the appellant sought review of a magistrate’s electronic order dismissing his case.  The Court first observed that the appellant did not appear to have consented to final disposition of his case by a magistrate as opposed to the district judge.  Op. at 3-4.  The Court went on to note that “[t]he electronic order entered by the magistrate judge . . . does not appear on any document–electronic or otherwise–other than as merely a separate entry on the docket sheet,” and thus did not comply with the requirement of Fed. R. Civ. P. 58 that “every judgment shall be set forth on a separate document.”  Op. at 4.  The Court noted that certain exceptions to Rule 58 were not applicable.  Op. at 4 n.2.  (The opinion was revised to “remove language indicating that all judgments must be set forth on paper documents” and to note that an appropriate document “may be electronic.”  Op. at 1.

The United States removed a case after entry of a default judgment against two doctors associated with the federal government (and after their motion for new trial was overruled by operation of law under Texas rules).  Oviedo v. Hallbauer (revised October 14, 2011)  After reviewing several potentially applicable removal statutes, the Court held: “The weight of authority thus holds that, by the time the government filed its notice of removal in this case, there was no pending case to remove, inasmuch as nothing remained for the state courts to do but execute the judgment.”  (Op. at 7)  Given this conclusion about the timeliness of the removal, the Court also rejected an argument based on the Federal Tort Claims Act that the state court may have lacked jurisdiction over this case.  (Op. at 8-10)

In the case of Jimenez v. Wood County, the en banc Court reviewed the requirements for preserving charge error.  The case presented a civil rights challenge to a county’s strip-search policy as to misdemeanor arrestees.  At trial, the County made the objection, “Just one objection, Your Honor, the — the Court finding that this was a minor offense as a matter of law.  For record purposes, we would object.”  Op. at 2-3.  The Court found that this objection preserved an argument as to whether the plaintiff was arrested for a “minor offense,” but did not preserve an argument as to whether “reasonable suspicion” was required for the search at issue.  The Court thoroughly reviewed the requirements of Fed. R. Civ. P. 51, both as to the substance and timing of a charge objection.  Op. at 4-6 & n.2.  It rejected the County’s argument that statements made at a pre-trial conference were sufficient to preserve error here, and that “any objection would have been futile” because of the state of Circuit precedent at the time.  Judge Smith’s dissent suggests potential exceptions to the majority’s approach to Rule 51.  Op. at 16 n.4.

In Wal-Mart Stores, Inc. v. Qore, Inc. (originally released in July, revised October 6), Wal-Mart sued several defendants about structural problems with a new store in Starkville, Mississippi.  Wal-Mart won some claims at trial, the share of which for defendant Qore (a geotechnical services firm) was $48,600.  Pursuant to an indenmity provision that reached “any claim, demand, loss, damage or injury (including Attorney’s fees) caused by any negligent act or omission,” the trial court awarded $810,000 in fees against Qore – the substantial majority of Wal-Mart’s fees for the whole case.  The Fifth Circuit agreed that this provision justified a fee award, but found the award excessive because Wal-Mart’s fees could have been segregated, and remanded for further proceedings.  Op. at 6.  The Court noted that Cobb v. Miller, 818 F.2d 1227 (5th Cir. 1987), an attorneys fee dispute in a civil rights case, raised policy issues about “private attorney[s] general” that did not apply to this Mississippi state law matter.  Op. at 13.