The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on July 23, 2008:

• U.S. v. Plascencia (Reavley, Benavides, Owen, JJ.; opinion by Reavley, J.; dissent by Owen, J.) (appeal from N.D. Tex.). Affirming district court’s dismissal of defendant’s § 2255 petition on the basis that it was time-barred. Defendant’s conviction and sentence was rendered by judgment on December 23, 2003. He filed a pro se notice of appeal on January 15, 2004, three days after the time for filing notice of appeal had lapsed. Upon instructions from the Fifth Circuit to construe the late notice of appeal as a motion for extension of time to appeal, the district court found that the defendant had failed to show excusable neglect or cause for the late filing, and dismissed the notice of appeal as untimely. The defendant filed his § 2255 petition on June 15, 2005. The district court dismissed it as untimely. The Fifth Circuit held that the limitations period for filing the § 2255 petition commenced on the expiration of time for timely filing of notice of appeal on direct appeal from the original judgment, not after a ninety-day period for filing for writ of certiorari from the appeals court’s affirmance of the denial of the motion for extension of time to appeal. Dissenting, Judge Owen wrote that the Fifth Circuit’s affirmance of the denial of motion for extension of time to appeal was reviewable by the Supreme Court as part of that appeal, and that the ninety-day period for filing for writ should have been included in the calculation of the time for filing a § 2255 petition.
• Poliner v. Texas Health Systems (King, Higginbotham, Southwick, JJ.; opinion by Higginbotham, J.) (appeal from N.D. Tex.). Reversing judgment on verdict in favor of plaintiff in defamation case, and rendering judgment in favor of defendants. Plaintiff brought defamation claim against hospital and leading physician, based on temporary restriction of his privileges and five-month suspension of operation of his catheterization lab. The district court granted partial summary judgment to the defendants, finding that the defendants were immune from money damages arising from the suspension of the lab under the Health Care Quality Improvement Act (”HCQIA”), but finding that the question of HCQIA immunity arising from the 29-day restrictions on the plaintiff’s privileges was a jury question. While the plaintiff showed $10,000 in actual loss of income due to the restricted privileges, the jury awarded $90 million in defamation damages, primarily for mental anguish and injury to career, and $110 million in punitive damages. The district court ordered a remittitur to $33 million. The Fifth Circuit held that the HCQIA immunity extended to the claims arising from the temporary restriction on privileges, and reversed and rendered in favor of the defendants.
• Meza v. Livingston (Higginbotham, Davis, Barksdale, JJ.; opinion by Higginbotham, J.) (appeal from W.D. Tex.). Dismissing appeal as an unreviewable interlocutory order. Defendants had raised motions to dismiss claims against sheriff and county officials on the basis of Eleventh Amendment immunity. The district court denied those motions as to the claims for injunctive relief on Ex Parte Young grounds. The defendants then raised Eleventh Amendment immunity again in subsequent summary judgment motions. The district court maintained those summary judgment motions under advisement following the final pretrial conference, and the defendants attempted to appeal from that status as a failure to rule by the district court. The Fifth Circuit held that the district court had not failed to rule on the Eleventh Amendment issues, and that the appeal was an impermissible interlocutory appeal.