The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on July 29, 2008:

• Indiana Electrical Workers’ Pension Trust Fund IBEW v. Shaw Group Inc. (Jones, C.J., Stewart, Clement, JJ.; opinion by Jones, C.J.) (appeal from E.D. La.). On interlocutory appeal, reversing district court’s denial of motion to dismiss under the Private Securities Litigation Reform Act (”PSLRA”), and remanding with instructions to dismiss. Plaintiffs brought an action against Shaw alleging public misrepresentations about the financial condition of the company in order to inflate the company’s stock value. Shaw brought a motion to dismiss for failure to meet the heightened pleading requirements of the PSLRA, which was denied by the district court. The Fifth Circuit held that the complaint failed to meet the pleadings requirements of the Act because it insufficiently alleged that the defendants acted with scienter.
• Pondexter v. Quarterman (Barksdale, Benavides, Stewart, JJ.; opinion by Barksdale, J.) (appeal from E.D. Tex.). Affirming district court’s denial of habeas relief. The Fifth Circuit held that the state court, on review of a petition for state habeas relief, was not unreasonable in denying the petitioner’s claim for ineffective assistance of counsel in the failure to consult with and elicit the testimony of a pathologist.
• Community Care LLC v. Leavitt (Higginbotham, Benavides, Dennis, JJ.; opinion by Benavides, J.) (appeal from E.D. La.). Affirming district court’s summary judgment in favor of Department of Health and Human Services, upholding DHHS’s administrative decision to disallow as compensable under the Medicare program approximately $335,000 in costs incurred by the hospital. DHHS had provided conflicting determinations to the hospital before finally determining that the costs were disallowed. The Fifth Circuit held, “We recognize that CCH is frustrated by the conflicting decisions arrived at by the Secretary, the PRRB, CMS, and its fiscal intermediary regarding the cost-reporting period of its SNF. Such conflicting positions at different levels within the administrative agency, however, simply reflect the agency’s adjudicative process at work. More importantly, we may only review the ultimate decision of the Secretary, which is ‘issued only after a case has progressed through all the levels of administrative review.’” Accordingly, the Fifth Circuit examined the final decision and determined that it was not arbitrary or capricious.