The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on April 22, 2008:

• United National Ins. Co. v. Motiva Enterprises L.L.C. (Jones, C.J., Benavides, Stewart, JJ.; opinion by Jones, C.J.) (amending opinion of August 15, 2007, upon consideration of petition for rehearing). Contractor’s workers were injured while engaged in a sludge-removal operation from a storage tank owned by Motiva; contractor had a CGL policy through United National, naming Motiva as an additional insured. United National denied coverage upon claim for indemnification by Motiva, on the basis of the pollution exclusion clause. The Fifth Circuit panel originally held that the pollution exclusion clause was applicable, rejecting Motiva’s argument that the worker’s exposure to both a pollutant and a non-pollutant rendered the exclusion inoperable, and holding that the hydrogen sulfide sludge was a “pollutant” though contained within the storage tank. The Fifth Circuit panel’s original opinion also rejected Motiva’s argument that the Contractors Limitation Endorsement clause revived coverage in spite of the express exclusions. The original panel opinion was based in part on the panel’s reading of the plaintiff’s petition as directly implicating the pollution exclusion. On rehearing, the Fifth Circuit panel amends its opinion to directly address the edict that the Court is to liberally construe pleadings. The Court nonetheless held that, even under the liberal construction of the plaintiffs’ complaint, the insurer correctly relied on the pollution exclusion clause and the Contractors Limitation Endorsement clause did not revive coverage.
• Arguelles-Olivares v. Mukasey (Garwood, Dennis, Owen, JJ.; opinion by Owen, J.; dissent by Dennis, J.). The petitioner pleaded guilty to knowingly filing a false tax return; the Department of Homeland Security instituted removal proceedings to remove petitioner from the country on the basis that the federal tax evasion conviction constituted an “aggravated felony” for purposes of 8 USC s. 1101(a)(43)(M). The majority of the Fifth Circuit panel agreed, acknowledging a split on this question between the U.S. Third and Ninth Circuits and deciding that the result reached in the U.S. Ninth Circuit by then-Judge (now-Justice) Alito. The Fifth Circuit majority also holds that it is proper to rely on the Pre-Sentencing Report (”PSR”) to determine whether the amount involved in the tax evasion offense meets the $10,000.00 threshold to constitute an aggravated felony. In dissent, Judge Dennis contends that the majority opinion contravenes clear 5th Circuit guidance on both issues, and that it ignored the modified categorical approach to prior convictions in the immigration context found in the U.S. Supreme Court’s opinions in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005).