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Shira R. Yoshor is a partner in Baker Botts’ Houston office. Her practice includes general commercial as well as employment cases, focusing on such areas as contract disputes, class action claims, business torts, telecommunications law and real estate issues. Brandi C. Sablatura, a summer associate at the firm and a student at Louisiana State University Paul M. Hebert Law Center, provided assistance in the preparation of this article. During the past year, the 5th U.S. Circuit Court of Appeals issued several opinions in cases of first impression. Those groundbreaking decisions determined issues concerning public accommodations for the disabled under the Americans With Disabilities Act (ADA), appealability of actions certified as collective actions under the Fair Labor Standards Act and the taxability of prejudgment interest awarded in personal injury suits. In addition to these landmark cases, the 5th Circuit also reached unexpected results in several cases, one reported below, that may not have far-reaching impact, but are remarkable and interesting for other reasons. Melton v. Dallas Area Rapid Transit System, 391 F.3d 669 (5th Cir. 2004), decided by the 5th Circuit in November 2004, is a significant case that addresses an issue of first impression for all circuits: whether Title II of the ADA “requires a public transportation system to make reasonable modifications to its paratransit service.” Id. at 672-73. The Meltons claimed on behalf of their son Jason that Jason was denied “meaningful access” to public transportation because the Dallas Area Rapid Transit System (DART) discontinued its practice of picking up Jason in the alley directly behind their house. Instead, DART’s current paratransit plan, approved by the Federal Transit Administration (FTA), provided curbside service for Jason and other people with disabilities who were unable to use DART’s fixed-route system. The front of the Meltons’ home contained a steep slope that prevented the Meltons from taking Jason to the street in his wheelchair. The Meltons constructed a ramp in their garage to provide Jason access to the rear driveway and public alley. DART discontinued the practice of picking up Jason in the alley (after about seven years) because of safety concerns. The Meltons alleged that DART’s failure to modify its paratransit plan violated Title II of the ADA. The 5th Circuit considered the difficult central question: whether utilizing an FTA-approved plan was sufficient to comply with the ADA or whether the ADA required a public transportation system to make reasonable modifications to its paratransit services. The court reviewed the relevant provisions of the ADA and concluded that DART was not required to make reasonable modifications to its paratransit services. To protect disabled people from discrimination, the ADA requires public entities operating a fixed-route system to submit a plan annually to the secretary of transportation, who analyses whether the plan sufficiently addresses accommodations necessary under 42 U.S.C. 12143(a). The approved plan for paratransit services is the accommodation that the public transportation entity must provide. If the public transportation deviates from the plan, then that deviation could potentially constitute discrimination, but that was not an issue in the Meltoncase. Class certification orders In Baldridge v. SBC Communications, 404 F.3d 930 (5th Cir. 2005), the 5th Circuit considered for the first time whether certification orders under 29 U.S.C. 216(b) of the Fair Labor Standards Act (FLSA) are appealable under the narrow exception to 28 U.S.C. 1291, as collateral orders that meet the standards set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The district court declined to certify an interlocutory appeal on the class certification order. Under � 1291, courts of appeals have jurisdiction over final judgments. Ordinarily, a decision to certify a class is not considered a final decision under � 1291 that may be appealed. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the U.S. Supreme Court carved out an exception to � 1291′s “final judgment” rule and held that a very narrow class of collateral orders may be appealed: The order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action and be effectively unreviewable on appeal from a final judgment. Baldridge, 404 F.3d at 931 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)).
Appeals court on the Gulf Coast The 5th U.S. Circuit Court of Appeals covers Louisiana, Mississippi and Texas, though it once covered a larger territory. It included Alabama, Florida and Georgia until 1980, when the circuit was split. The latter three now make up the 11th Circuit. The 5th Circuit is based in New Orleans. Sixteen judges currently sit on the court. There are two vacancies. The sitting judges are: Chief Judge Carolyn Dineen King, nominated by President Jimmy Carter, confirmed on July 12, 1979. E. Grady Jolly, nominated by President Ronald Reagan, confirmed on July 27, 1982. Patrick E. Higginbotham, nominated by Reagan, confirmed on July 27, 1982. W. Eugene Davis, nominated by Reagan, confirmed on Nov. 16, 1983. Edith H. Jones, nominated by Reagan, confirmed on April 3, 1985. Jerry E. Smith, nominated by Reagan, confirmed on Dec. 19, 1987. Jacques L. Wiener Jr., nominated by President George H.W. Bush, confirmed on March 9, 1990. Rhesa H. Barksdale, nominated by George H.W. Bush, confirmed on March 9, 1990. Emilio M. Garza, nominated by George H.W. Bush, confirmed on May 24, 1991. Harold R. DeMoss Jr., nominated by George H.W. Bush, confirmed on Nov. 27, 1991. Fortunato P. Benavides, nominated by President Bill Clinton, confirmed on May 6, 1994. Carl E. Stewart, nominated by Clinton, confirmed on May 6, 1994. James L. Dennis, nominated by Clinton, confirmed on Sept. 28, 1995. Edith Brown Clement, nominated by President George W. Bush, confirmed on Nov. 13, 2001. Edward Charles Prado, nominated by George W. Bush, confirmed on May 1, 2003. Priscilla Richman Owen, nominated by George W. Bush, confirmed on May 25, 2005. The senior judges are: Thomas M. Reavley, nominated by Carter in 1979. William L. Garwood, nominated by Reagan in 1981. Priscilla Owen was confirmed as the result of an agreement among seven Republican and seven Democratic senators entered into on May 23 to avoid the “nuclear option,” which would have proscribed senators from using filibusters against judicial nominees. The 14 senators agreed to preserve the judicial filibuster, but to use it only in “extraordinary circumstances,” and to allow three circuit court nominations, including Owen’s, to go forward. Two 5th Circuit judges, W. Homer Thornberry and G. Harrold Carswell, were nominated to the U.S. Supreme Court, but neither were confirmed.

In Coopers & Lybrand, the Supreme Court declined to extend the Cohenexception to class certification orders because such orders may be revised by the district court. 437 U.S. at 469. The Baldridgecourt followed the reasoning in Coopers & Lybrandand concluded that the class certification decision under � 216 of the FLSA did not fall under the Cohenexception because it did not conclusively determine the disputed question, and the certification order could be modified later. Baldridge, 404 F.3d at 931-32. The 5th Circuit was not persuaded by the defendants’ arguments that Coopers & Lybrandwas abrogated completely by Federal Rule of Civil Procedure 23(f), which allows for discretionary interlocutory review of class certification. Id. at 932. While Rule 23(f) permits interlocutory appeals of orders granting or denying class certification under Rule 23, Rule 23 did not apply in Baldridgebecause Baldrigeinvolved “a ‘garden variety’ � 216(b) FLSA action and is not a rule 23 class action.” Id. The Baldridgecourt noted a possible reason for the different availability of interlocutory appeals between Rule 23 class actions and � 216(b) collective actions. Section 216(b) requires each member to opt in as a plaintiff, while a Rule 23 class action includes all class members who do not opt out. Id. at 932 n.6. As a result, there are stronger policy justifications for a rule allowing interlocutory appeals of class certification orders in cases that could result in “larger, more financially onerous classes” than typical classes under � 216(b). Id. In Chamberlain v. U.S., 401 F.3d 335 (5th Cir. 2005), the 5th Circuit joined the 1st, 3d and 10th circuits in concluding that prejudgment interest awarded in a personal injury suit is subject to federal income taxation. The court explained that prejudgment interest is intended to compensate for the time value of money and is a result of the delay in payment, not received “on account of” the personal injury. Using the reasoning of the other circuit courts that previously addressed this issue against the backdrop of the Supreme Court’s analysis of 26 U.S.C. 104(a)(2), the court held that prejudgment interest is not excluded from gross income under � 104(a)(2) of the Internal Revenue Code. First Amendment victory Although the 5th Circuit is generally characterized as relatively conservative, Salge v. Edna Independent School District, 411 F.3d 178 (5th Cir. 2005), is an unusual instance in which the court affirmed summary judgment in favor of an employee. The employee alleged that she had been fired because of her age or in retaliation for exercising her free speech rights in violation of 42 U.S.C. 1983. The district court granted summary judgment for the employee on the retaliation claim and for the employer school district on the age discrimination claim. The heart of the 5th Circuit’s analysis centered on whether the employee/secretary’s comments to a reporter about the principal’s resignation were a matter of public concern and whether the employee’s interest in commenting on the matters outweighed the employer’s interest in promoting efficiency-including efficiently furnishing public services by avoiding disharmony among co-workers, impediments to the performance of the speaker’s duties and interference with the operations of the school district. After he received an unfavorable evaluation that criticized his performance, the principal at one of the defendant’s high schools announced at a meeting of the high school employees, including the plaintiff, that his contract would not be extended and that he intended to resign. Two days later, a local newspaper reported that the principal was retiring. Some time after this story, a reporter called the school for information about another employee’s resignation. The plaintiff answered the phone and spoke to the reporter. Several weeks later, the local newspaper ran an article that stated that the principal’s contract had not been renewed. The plaintiff denied that she stated that the contract had not been renewed, but admitted that she said the contract had not been extended. The nonrenewal of such a contract at the end of the second year of the two-year contract would be an immediate termination. In contrast, the nonrenewal at the end of the first year, referred to as a non-extension, did not necessarily mandate termination. It simply served as a warning that the contract may not be renewed at the end of the second year. The newspaper article erroneously reported that the principal’s contract had not been renewed, incorrectly implying that he had been fired immediately. Some of the defendant’s employees and parents were concerned that confidential personnel information had been released to the media. The defendant terminated the employee for releasing confidential information to the media in violation of school district policies. The 5th Circuit reviewed the elements required to prevail on a First Amendment employment retaliation claim and focused on two issues: whether the speech involved a matter of public concern and whether the employee’s interest in commenting on matters of public concern outweighed the employer’s interest in promoting efficiency. The court concluded that the speech, which “indisputably concerned the high school principal’s resignation,” involved a matter of public concern. Id. at 185-92. Using the balancing test crafted by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), the court also decided that the disruption caused by the plaintiff’s speech did not outweigh her interest in speaking on a matter of public interest. Id. at 196-98. This case is noteworthy in particular because courts rarely grant summary judgment in favor of plaintiffs in employment cases. Even more significantly, the Supreme Court recently granted a petition for certiorari in a case from the 9th Circuit that will decide the circumstances in which a public employee’s job-related speech is protected under the First Amendment. Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004), cert. granted, 125 S. Ct. 1395 (2005). Stay tuned for the final word on this issue.

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