The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on November 10, 2008:

• Omega Protein Inc. v. Samson Contour Energy E&P LLC (King, DeMoss, Prado, JJ.; opinion by DeMoss, J.) (appeal from W.D. La.). Affirming judgment by district court assigning fault equally between vessel owner and platform owner in case arising from vessel allision and allowing vessel owner to limit its liability under 46 U.S.C. § 30505. The Fifth Circuit held that the district court’s findings regarding the cause of, and the comparative fault for, the allision were not clearly erroneous; and that the district court correctly applied the Limitation of Liability Act where the vessel owner’s fault was attributable to a mistake in navigation by an otherwise competent crew.
• Jacobs v. National Drug Intelligence Center (Jolly, Barksdale, Haynes, JJ.; opinion by Barksdale, J.) (appeal from S.D. Tex.). Affirming district court’s ruling that “actual damages” under the Privacy Act of 1974 encompass emotional-distress damages. The Fifth Circuit recognized that its affirmance was required under clear Circuit precedent and the Circuit’s adherence to the rule of orderliness, which requires that no panel can overrule another panel. The panel took great pains to signal its disagreement with the precedent established in Johnson v. Department of Treasury, 700 F.2d 971 (5th Cir. 1983), and explain that its holding in this case is confined by the rule of orderliness.
• Sherer v. Green Tree Servicing LLC (King, Higginbotham, Wiener, JJ.; per curiam opinion) (appeal from S.D. Miss.). Reversing district court’s denial of motion to compel arbitration. The defendant was not a party to the underlying loan agreement that contains the arbitration clause at issue, but the arbitration clause provides broadly that “[a]ll disputed, claims, or controversies arising from or relating to this Agreement or the relationships which arise from this Agreement . . . shall be resolved by binding arbitration.” The defendant subsequently obtained the servicing rights to the loan, and this litigation followed. The defendant then invoked the arbitration clause and moved to compel arbitration, which motion the district court denied. The Fifth Circuit held that the arbitration clause clearly established the circumstances in which the signatory to the loan (here, the plaintiff) would be compelled to arbitrate with a non-signatory, and that the defendant was included in that class of relationships.
• Menard v. Federal Aviation Administration (Wiener, Garza, DeMoss, JJ.; opinion by DeMoss, J.) (on petition for review of orders of the FAA). Denying the petition for review of two FAA orders allowing for operation of two airstrips on adjoining properties. The petitioners own a small airstrip in Berryville, Texas, as do the owners of adjoining properties. The petitioners requested that the FAA enter an order shutting down the airstrip on the adjoining property. The FAA entered conditional approvals of the public operation of both airstrips. The Fifth Circuit held that the FAA’s Part 57 “advisory” orders were reviewable on appeal and did present justiciable controversies; and that the FAA did not act arbitrarily or capriciously in entering the conditional approvals.