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

• Chichakli v. Szubin (Stewart, Owen, Southwick, JJ.; opinion by Southwick, J.) (appeal from N.D. Tex.). Affirming in part and vacating in part summary judgment in favor of defendant Office of Foreign Assets Control (”OFAC”) on plaintiff’s claim that OFAC’s Blocking Notice was unconstitutional. The plaintiff was determined to be acting on behalf of an individual listed in an executive order freezing the assets of 28 people determined to be contributing to the unstable situation in Liberia; accordingly, OFAC issued a blocking order, and subsequently denied the plaintiff’s request for reconsideration. Plaintiff then brought suit, alleging insufficient evidence to support the blocking order, and raising claims of violation of his due process rights, the Takings clause, and the Administrative Procedure Act. The Fifth Circuit held that there was no due process violation because there were exigent circumstances justifying the pre-notice deprivation and there were adequate post-deprivation safeguards available to the plaintiff; that the district court did not have jurisdiction to rule on the Takings claim because the claim appeared to be in excess of $10,000, placing it under the Tucker Act in the exclusive jurisdiction of the Court of Federal Claims; and that there was sufficient evidence to support the finding that the OFAC did not act arbitrarily or capriciously in entering the blocking order.
• Millan v. USAA General Indemnity Co. (Jolly, Barksdale, Haynes, JJ.; opinion by Haynes, J.) (appeal from E.D. La.). Reversing and remanding district court’s dismissal of plaintiff’s claim for failure to timely effect service under Federal Rule of Civil Procedure 4(m). The 120-day period for Rule 4(m) service to be effected ran on September 17, 2007. Prior to that, however, the district court entered an order on September 6, 2007, noting that service had not been effected and providing that the plaintiff must file a return of service prior to October 9, 2007, or that his suit would be dismissed. Plaintiff effected service and filed the return into the record on September 21, 2007, four days after the 120-day period but prior to the district court’s ordered deadline for filing a return of service. Subsequently, the district court granted the defendant’s motion to dismiss for failure to comply with Rule 4(m). The Fifth Circuit first observed that the Rule 4(m) dismissal, while technically without prejudice, should be treated under a heightened standard of review because the running of the prescriptive period rendered the dismissal as a practical matter to be with prejudice. The Court then held that the district court should have, under this heightened standard, granted an extension to the Rule 4(m) period because the delay was not due to the plaintiff’s contumacious conduct.