The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on August 8, 2008:

• McIntosh v. Partridge (Garwood, Clement, Elrod, JJ.; opinion by Garwood, J.) (appeal from S.D. Tex.). Affirming dismissal of lawsuit on summary judgment. Plaintiff McIntosh was the director of dentistry at the Richmond State School (”RSS”), when he was called up to serve in Iraq and Kuwait in his capacity as a member of the Naval Reserve. His contract fill-in at RSS observed the poor quality of dental care of RSS’s residents, and a subsequent audit led to the suspension of McIntosh’s privileges at RSS pending an investigation upon his return from Reserve duty. McIntosh brought this suit against Partridge, RSS’s medical director, individually and in his official capacity, asserting claims under the Uniformed Services Employment and Reemployment Rights Act (”USERRA”), the Fourteenth Amendment’s equal protection and due process clauses, and Texas state defamation law. The district court rejected Partridge’s arguments that it did not have jurisdiction over McIntosh’s USERRA claim and that sovereign immunity precluded its exercise of jurisdiction over the claims against Partridge in his official capacity, but entered a take-nothing judgment against McIntosh on the basis that he failed to show that his termination was related to his military service and that his due process and equal protection rights were not violated. The Fifth Circuit held that USERRA’s text did not unambiguously express the intent to abrogate states’ sovereign immunity, and that the federal courts therefore lacked subject matter jurisdiction over McIntosh’s USERRA claims; that the district court did not rely on inadmissible summary judgment evidence in making its ruling; that any violation of Texas state law by not providing McIntosh with a hearing prior to his suspension did not constitute a constitutional violation of due process; that McIntosh failed to establish a due process or equal protection violation; and that the district court correctly dismissed McIntosh’s defamation claim because Partridge was entitled to official immunity as a matter of law.
• U.S. v. Muñiz (Jolly, Clement, Owen, JJ.; per curiam opinion) (appeal from S.D. Tex.). Dismissing appeal for lack of appellate jurisdiction. The government filed a condemnation action to achieve a temporary easement over property owned by the defendants on the U.S.-Mexico border in order to conduct surveys and perform other work preparatory to construction of a border fence. The district court granted the temporary easement in a series of possession orders. The Fifth Circuit held that the district court’s possession orders were not final, appealable judgments, and dismissed for lack of appellate jurisdiction.