The following published opinion were released by the U.S. Court of Appeals for the Fifth Circuit on July 16, 2008:

• Baker v. Canadian National/Illinois Central Railroad (Higginbotham, Smith, Owen, JJ.; opinion by Owen, J.) (appeal from S.D. Miss.). Affirming judgment on jury verdict in favor of defendant railroad company on suit brought by driver of dump truck struck by train. The Fifth Circuit held that the plaintiff’s violation of three statutory duties was arguably a proximate cause of the accident, such that the district court did not err in ruling that the railroad was not negligent per se under Mississippi law; that the Roadway Worker Protection Rules were not applicable because the worksite was 20 to 30 feet from the railroad tracks, and therefore did not have the potential of “fouling the track”; that the district court did not err in rejecting the plaintiff’s JMOL motion that he was entitled to judgment on the railroad’s common law duties because the parties had presented dueling expert opinions on railroad safety that left the question to the jury; that the district court did not abuse its discretion with regard to the jury instructions or special jury interrogatories; that the jury’s verdict was not against the great weight of the evidence; and that the district court did not abuse its discretion with regard to numerous evidentiary challenges.
• Powell v. Quarterman (Jolly, Davis, Owen, JJ.; opinion by Jolly, J.) (appeal from W.D. Tex.). Affirming the district court’s denial of habeas relief. The Fifth Circuit held that Apprendi did not entitle the petitioner to a full retrial of both guilt and punishment phases after his sentence had been overturned on direct appeal; that the state court’s determination that the petitioner had not suffered a Brady violation was not contrary to or an unreasonable application of clearly established law; and that testimony of the physician who treated the petitioner post-arrest as to the petitioner’s statements regarding his sobriety at the time of the crime did not violate the petitioner’s Fifth Amendment freedom from self-incrimination under Estelle.
• Turbomeca, S.A. v. Era Helicopters LLC (Prado, Elrod, Haynes, JJ.; opinion by Elrod, J.) (appeal from W.D. La.). Affirming the district court’s dismissal of tort claims alleging a post-sale failure to warn of a pre-sale product defect. The Fifth Circuit rejected the argument that this Circuit should recognize a post-sale negligence exception to the maritime “economic loss doctrine.”
• Carmona v. Southwest Airlines Co. (Jones, C.J., Wiener, Clement, JJ.; opinion by Wiener, J.) (appeal from W.D. Tex.). Reversing district court’s dismissal for lack of jurisdiction, and remanding for further proceedings. The Fifth Circuit held that the plaintiff’s employment discrimination claim presented a “major” dispute under the Railway Labor Act, and was therefore not restricted to review by the RLA Adjustment Board and precluded from judicial review.
• Masih v.Mukasey (Jones, C.J., Wiener, Clement, JJ.; opinion by Wiener, J.) (petition for review of Order of the Board of Immigration Appeals). Granting petition, reversing decision of BIA, and remanding to BIA with requirement to remand to Immigration Judge to reconsider petitioner’s request for abeyance of removal proceedings while he seeks an adjustment of status. The petitioner entered the country initially under a visa in 1990 that expired in 1993, after which point he remained in the country. After receiving a notice to appear for removal proceedings in 2003, the petitioner was the beneficiary of a successful I-140 application and was provided a a visa priority date, which was still valid at the time he filed an I-485 application for adjustment of status. During the pendency of his application for status adjustment, the visa preference regressed, and the petitioner requested abeyance of his removal proceedings until his visa again became available to him. The IJ denied this request, and was affirmed by the BIA. Reversing, the Fifth Circuit held that the BIA abused its discretion, because the statute only requires that the visa be immediately available to an I-485 applicant at the time he applies for adjustment of status.
• Hayward v. U.S. Department of Labor (Higginbotham, Davis, Haynes, JJ.; per curiam opinion) (appeal from N.D. Tex.). Affirming the district court’s grant of summary judgment in favor of DOL in case regarding denial of statutory benefits for survivors of persons who contracted cancer due to exposure to radiation during employment in the United States’ program for the development of nuclear weapons (under the Energy Occupational Illness Compensation Program Act). Under the compensation program, the DOL determines if a decedent’s cancer was caused by the employment-related radiation exposure by using an interactive software program set to certain default settings to determine the causal correlation between radiation exposure and certain types of cancer. The plaintiff argued that the DOL should have shifted from the default settings to account for her husband’s rare type of prostate cancer. The Fifth Circuit held that the DOL did not act arbitrarily and capriciously in retaining the default settings.