Articles Posted in U.S. Court of Appeals for the Fifth Circuit

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Two former sheriff's deputies were terminated for violating the Sheriff's Code of Conduct because they moved in with each other's wife and family before getting divorced from their current wives. The district court held that the Code policies invoked against the deputies were supported by the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriff's Department, and that the Code was not unconstitutionally vague as written or enforced. The Fifth Circuit affirmed the district court's judgment in favor of defendants, holding that the district court made no reversible error of fact or law. The court explained that Obergefell v. Hodges does not alter applicable law, and did not create "rights" based on relationships that mock marriage. View "Coker, v. Whittington" on Justia Law

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Plaintiff, a GM employee, filed suit against GM for interference and retaliation under the Family Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq.; for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.; and for violation of Texas law. The district court granted summary judgment for GM. The court concluded that the FMLA and accompanying regulations require employees to follow their employer's "usual and customary" procedures for requesting FMLA leave absent "unusual circumstances." In this case, plaintiff failed to demonstrate that there were unusual circumstances arising from his condition that prevented him from complying with GM's call-in policy. Therefore, plaintiff failed to raise a fact issue for FMLA interference. The court also concluded that plaintiff failed to make a prima facie case of FMLA retaliation where he has not shown how his disciplinary leave was caused by his attempts to seek protection under the FMLA instead of his failure to follow GM's attendance and absence approval process; plaintiff failed to demonstrate that GM denied him a reasonable accommodation under the ADA; and plaintiff's Texas law claim also failed. Accordingly, the court affirmed the judgment. View "Acker v. General Motors, LLC" on Justia Law

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Father initiated proceedings for the return of his two young daughters under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico City until Mother took them on vacation and wrongfully detained them in the United States. The district court ordered the children returned to Mexico. The court affirmed the district court's denial of Father's post-judgment motions, concluding that the courts in Mexico, the state of the children's habitual residence, are the appropriate forum to grant relief to address his concerns. The court explained that, subject only to the confines of Mexican law, Mexican courts are free to grant Father full custody over the children and to prohibit or restrict their international travel, and there is no international legal void that requires the Convention’s intervention. In regard to Mother's challenge of the district court's denial of her motion to vacate the Original Return Order, the arrest warrant for Mother's arrest does not establish clear and convincing evidence of a grave risk of harm to the children. Therefore, the court affirmed the district court's denial of Mother's motion to vacate. View "Vergara Madrigal v. Tellez" on Justia Law

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Petitioner challenges the district court's denial of his petition for return of his children to Venezuela pursuant to the Hague Convention. The court concluded that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous. In this case, the record demonstrates that respondent, the children's mother, and petitioner's last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. The court also concluded that petitioner cannot meet his burden to show that the children were wrongfully removed from Venezuela or retained in the United States because Venezuela was abandoned as the children’s habitual residence. Accordingly, the court affirmed the judgment. View "Delgado v. Osuna" on Justia Law

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Six-year-old D.A.P.G. was abducted from his home in Honduras and brought illegally into the United States by defendant, his mother. Plaintiff filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, seeking the return of his only child. Plaintiff filed his return petition two months outside of the one-year period of the child's wrongful removal, allowing the district court to consider the Convention’s defense that the child is well-settled in his new environment and therefore should not be returned. The district court denied plaintiff's petition, concluding that D.A.P.G. was well-settled in his current community even though defendant’s removal of D.A.P.G. from Honduras was wrongful. The court concluded that the district court erred in its legal analysis and application of the Convention’s well-settled defense. The court joined its sister circuits and held that the following factors should be considered: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. The court joined the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. Here, the district court did not clearly err in its factual findings but erred in its legal interpretation and application of the well-settled defense. Giving due consideration to immigration status and the other relevant factors listed above, the thin evidence in the record does not demonstrate that D.A.P.G. has formed significant connections to his new environment. Accordingly, the court vacated and rendered judgment in plaintiff's favor. View "Hernandez v. Pena" on Justia Law

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Pedro Antonio Flores Rodriguez petitioned for the return of his child, A.S.F.S., from the girl's mother, Yolanda Ivonne Salgado Yanez, under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 22 U.S.C. 9001-11. The district court denied the petition. The court concluded that the district court erred in concluding that Flores was not exercising his custody rights at the time of removal. Furthermore, the court agreed with Flores that the Convention requires an objection, not a mere preference, to being returned. In this case, the district court may have framed its questions during the private colloquy in terms of whether A.S.F.S. preferred to live in the United States, but its written findings are more ambiguous. Although the district court's findings adequately explain why A.S.F.S. is mature enough to object, they only hint at whether she did object and, if so, for what reasons. Accordingly, the court vacated this portion of the district court's order and remanded to allow the district court to engage in a new colloquy with A.S.F.S. and enter more detailed findings regarding its eventual conclusion. View "Flores Rodriguez v. Salgado Yanez" on Justia Law