The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on June 6, 2008:

• U.S. v. Sanchez-Cortez (Jones, C.J., Wiener, Clement, JJ.; per curiam opinion). Affirming sentence of defendant convicted of possession with intent to distribute cocaine, where sentence was enhanced two levels for prior military court martial conviction for AWOL. The defendant argued that the AWOL conviction should be treated as “similar to” truancy, one of the offenses specifically excepted from calculation of background criminal history under the Sentencing Guidelines. The Fifth Circuit held that, under the “common sense approach” enunciated in U.S. v. Lamm, 392 F.3d 130 (5th Cir. 2004), AWOL is not similar to truancy, and the district court did not err in including the AWOL conviction in the calculation of the Guidelines range.
• U.S. v. Petty (Jones, C.J., Wiener, Clement, JJ.; per curiam opinion). Affirming the district court’s dismissal of the petitioner’s § 2255 petition as untimely, finding the district court did not abuse its discretion in rejecting petitioner’s equitable tolling argument. Petitioner’s direct appeal of his conviction and sentence was affirmed on April 14, 2004, and the time or application for writ of certiorari to the U.S. Supreme Court lapsed on July 14, 2004; in the interim, the Fifth Circuit revised its April 14 opinion in immaterial fashion on May 7, 2004. Petitioner filed his § 2255 petition for postconviction relief on August 4, 2005, more than a year after the July 14, 2004, lapsing of the time period to file an application for writ of certiorari; he argues that the May 7, 2004, revision of the Fifth Circuit’s opinion should have tolled the period for finality and thus the one-year period for filing a § 2255 petition, and alternatively that the one-year period should have been equitably tolled because he was informed by the clerk of district court that the May 7 date was the date on which his appeal became final and tha mandate issued. In this § 2255 appeal, the Fifth Circuit held that the district court did not abuse its discretion in dismissing the petition as untimely, because the 90-day period for writ of certiorari run from the date the appellate judgment is entered, not the date mandate is issued; and that confusion as to the filing date is not an extraordinary circumstance justifying equitable tolling.
• Peres v. Sherman (Smith, DeMoss, Stewart, JJ.; opinion by DeMoss, J.). After filing for bankruptcy by debtor Peres and his wife, the trustee called a creditor’s meeting under § 341(a), which was continued three times, including on September 23, 2005, when it was again continued without formal announcement as to when it would re-commence. The meeting was subsequently scheduled for July 19, 2006; a day before the scheduled meeting, the debtors informed the bankruptcy court they would be unable to attend due to a family emergency, and the meeting was rescheduled for August 24, 2006; the debtors moved to quash the scheduling as untimely, which was denied, and the meeting was concluded on August 24. On September 5, 2006, the trustee entered his objections to the debtors’ claimed exemptions, which were sustained by the bankruptcy court and upheld by the district court. At issue before the Fifth Circuit is whether the thirty-day deadline for the trustee to enter objections was triggered when the September 23, 2005, creditors’ meeting was continued without date, rendering the subsequent meeting and trustee objections untimely. The Fifth Circuit held that the district court did not commit plain error in rejecting this timeliness argument, finding that a case-by-case approach to determining timeliness of trustee objections is appropriate, rather than the bright-line rule advocated by the debtors and that is exercised in the Ninth Circuit, and finding that the district court did not clearly err in finding the trustee’s continuance in this case to be reasonable.
• Walch v. Adjutant General’s Office of Texas (King, DeMoss, Southwick, JJ.; opinion by Southwick, J.). Affirming district court’s dismissal of plaintiff’s claims based on his discharge from the Texas National Guard and dismissal from full-time employment as a full-time National Guard employee as non-justiciable on the basis of lack of subject matter jurisdiction and failure to state a claim. The Fifth Circuit held that the Feres doctrine’s concerns related to the second-guessing of military decisions was applicable to suits arising from National Guard service and employment, and that the plaintiff’s Bivens claims were therefore jurisdictionally barred; that the plaintiff’s Title VII claims arose from his military duty and were therefore barred as non-justiciable; but that the plaintiff was entitled to return to the administrative process to exhaust his administrative remedies.
• Elsensohn v. St. Tammany Parish Sheriff’s Office (King, Wiener, Elrod, JJ.; per curiam opinion). Affirming dismissal of plaintiff’s Family and Medical Leave Act claims. The wife of the plaintiff, an employee of the St. Tammany Parish Sherrif’s Office (”Sheriff”), had also been employed by the Sheriff and had brought an FMLA suit that was subsequently settled. After his wife’s suit was settled, plaintiff continued to get excellent performance evaluations but was denied several promotions. After he met with his supervisor regarding the denial of promotions, he was told he would not get any promotions and then he was changed to a less favorable night shift that would remove his overtime pay and block opportunities for lucrative work details. Plaintiff then filed suit under the FMLA. The Fifth Circuit held that the plaintiff did not satisfy the requirements for the anti-retaliation provisions of the FMLA because the record showed he was not giving or about to give information relevant to his wife’s settled FMLA claim, as he had averred that he had only provided moral support to his wife during the pendency of her claim.