The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on May 28, 2008:

• Pinkerton v. Paige (Jones, C.J., Reavley, Smith, JJ.; per curiam opinion). Withdrawing prior opinion upon petition for panel rehearing and replacing with new opinion. Plaintiff brought suit against the Department of Education under the Rehabilitation Act, alleging disability discrimination. At trial, the district court charged the jury with determining whether the disability discrimination shown by the plaintiff was the sole cause of the adverse employment decision. The Fifth Circuit held that the causation standard of § 501 of the Rehabilitation Act is equivalent to the causation standard in the Americans with Disabilities Act (”ADA”), rather than to the strict causation standard of § 504 of the Rehabilitation Act. The Court then held that the ADA does not require a “sole causation” standard, but that the disability discrimination merely be a motivating factor in the adverse employment decision, and that this standard applied also to Rehabilitation Act § 501 claims.
• Board of Trustees New Orleans Employers International Longshoremen’s Association v. Gabriel, Roeder, Smith & Co. (King, Stewart, Prado, JJ.; per curiam opinion). Affirming decision by district court that defendants did not commit actuarial malpractice. The Fifth Circuit rejected the plaintiffs’ argument that the district court entered contradictory rulings in finding that the continuing tort doctrine applied to the claims alleged by the plaintiffs, but in subsequently finding that the defendants were not liable. The Fifth Circuit also held that, while an actuary must provide an accurate cost progression analysis under the Actuarial Standard of Practice, the actuary is not under an affirmative duty to provide an opinion of whether the plan’s administrators can or should engage in a particular course of action.
• Mississippi State Democratic Party v. Barbour (Jones, C.J., Davis, Garza, JJ.; opinion by Jones, C.J.). The plaintiff (Mississippi Democratic Party) filed a suit seeking to have Mississippi’s semi-closed primary statute declared unconstitutional. The district court not only declared the statute unconstitutional, but also issued broad injunctive relief requiring party registration and use of photo identification to vote in party primaries. All sides appealed various portions of the judgment and injunctive relief. Reversing the judgment and vacating the injunctive relief, the Fifth Circuit endeavored to “put the parties out of their litigation misery.” Slip op. at 2. The Fifth Circuit held that the Mississippi Democratic Party did not have standing to bring the challenge to the statute, as the Party had made no showing that it was planning to hold a closed primary in violation of the semi-closed primary statute, that it had not sought preclearance from the Department of Justice to adopt a closed primary or taken any other serious steps toward adopting such a course of action. The Court then held that, even had the Party shown the requisite interest to assert standing, the claim would not have been ripe because any pre-enforcement challenge would have involved factual inquiries, not merely legal issues.
• Lane v. Halliburton Corp. (consol. w/ Smith-Idol v. Halliburton Corp. and Fisher v. Halliburton Corp.) (King, DeMoss, Southwick, JJ.; opinion by Southwick, J.). Reversing and remanding decision by district court that political question doctrine precluded suit by plaintiff truck drivers and their families for injuries sustained while employed by Kellogg, Brown & Root (KBR”) in Iraq, on the basis that further factual development was required. The Fifth Circuit held that KBR failed in its burden to show that the claims against it would require examination of decisions made by the military and that such military decision is insulated from judicial review; that the judiciary possessed the standards and experience to resolve the ordinary fraud and negligence claims brought against KBR, even in the extraordinary wartime context; that the plaintiffs presented at least one scenario in which they would be able to prove causation without review of Army policy or practice; and that the plaintiffs may not need the court to make a policy pronouncement as to the executive branch’s reliance on civilian contractor support in combat situations. While, the Court observed, future factual development may propel the case back toward the barrier of the political question doctrine, the plaintiffs’ claims had not yet reached that barrier and could possibly steer clear of it.