Baris v. Sulpicio Lines, Inc.

GARZA, Before SMITH and EMILIO M. STAGG,* Judges, Circuit Judge. District SMITH, JERRY E. Judge: Circuit Petroleum, (“Caltex”), Caltex Inc. Steamship Mutual Underwriting Association (Bermuda), Mutual”), (“Steamship Ltd. ap- peal the district injunc- court’s denial of an tion to bar suit in Louisiana state Concluding court. that the district court did reversibly err, we affirm. I.

In December DONA PAZ M/V collided with the VECTOR the Tablas M/T Strait Philippines; approximately 5,000 Filipino citizens lost their lives. The ferry DONA PAZ was a boat owned and M/V operated by Sulpicio Lines, Inc., Philip- pines corporation; VECTOR awas M/T operated by tanker owned and Ship- Vector ping Corp., Philippines corporation. also a collision, At the time of the the tanker was carrying petroleum products for Caltex Pe- troleum, Inc., Caltex Corporation, Petroleum Corporation, Caltex Oil corporations * Judge ana, District sitting by Western District of designation. Louisi- The motion to dismiss was available forum. Tex- place of business principal with their granted prejudice. as. was conditioned оn five The dismissal

II. things ensure that the defendants that would Philippines. suit in the would be to amenable Plaintiffs, of those who family members (1) certify that each would had to Defendants in in Louisiana court filed suit perished, jurisdiction process and to service of submit pro- service 1988 but withheld December (2) any formally waive Philippines; in the 1989,plain- In December years. cess for five (3) defense; agree that limitations statute of a class tiffs, individually on behalf of and already be used in the discovery taken could 5,000 Filipinos, up to purported to number (4) Philip- in the Philippines; make available court, naming nine Cal- in Texas state sued pines documents and witnesses all relevant “Caltex”) (collectively and tex defendants control; formally agree to and under its class, how- The other defendants. seventeen satisfy any judgment rendered the final ever, Claims were certified. has never been agreed to the con- Philippine courts. Caltex law, maritime the general pursuant to made fully complied cоurt has with the ditions and Act, provi- High and other on the Seas Death initiated plaintiffs the have order. to the pursuant law state and federal sions of Philippines. litigation in the 1381(1). clause, saving to suitors U.S.C. negligent was that Caltex Plaintiffs asserted timely appeal the dis- Plaintiffs failed cargo shipment on the entrusting its in result, dismissed this court missal. As VECTOR. M/T Lines, Sulpicio appeal. their See Baris curiam) (5th Cir.1992) Inc., (per 996 F.2d 308 in to federal case was removed court The (unpublished). upheld its February district court 1990. The оn jurisdiction and subject matter dismissed suit had been The Louisiana state that (“f.n.e”) in grounds non conveniens forum in 1988was served on Caltex filed December 1990. June Apparently, the suit in 1993. late December defendants, Sulpicio until two was a secret the the appealed on Plaintiffs Lines, (“Sulpicio”), Steamship Mutu- Inc. jurisdic subject matter court lacked district February 1990. happened upon it in al alternative, and, had in failed tion the remove, but attempted Those defendants analysis to the claim. correct f.n.e. apply the 1990 the Louisiana September in Lines, Inc., Sulpicio In Baris v. matter state court. court the remanded Cir.), yet and was not been served (1991) ("Baris Caltex had 116 L.Ed.2d proceed- party removal and remand to the jurisdiction ”), court’s upheld I we district the was ings. dormant until Caltex suit was The the issue. and remanded on f.n.e. but vacated 1993. in served December that the court expressed concern district guar that would imposed conditions had not attempted to re- January Caltex In opportunity to liti plaintiffs a fair antee the court. to Louisiana federal move the case Id. at 1552. gate Philippines. 13, 1994, again was re- May the matter On re- ground that the Caltex manded on the pending, plaintiffs appeal was While the untimely than one because more moval against was in state court another suit Texas filed The suit filed. year passed had since 1990; served August process Caltex argument that the the court did not address This suit was similar fivе months later. merely in had been revived Louisiana suit action and was removed the first Texas state preclusive the effect to avoid order the January then consolidated with Texas dismissal. July matter in first to seek relief returned to Texas f.n.e. Caltex a dismissal again Caltex moved had en- court that 3, 1992, federal district from the the district grounds. On March prejudice. f.n.e. dismissal tered Philippines was the court determined hearing to force for a a motion litigation that Caltex filed proper situs for why they should to show plaintiffs adequate Philippines — enjoined Am., pursuing any U.S. -, -, from their claims ian Ins. Co. of Life 1673, 1676, (1994). 128 L.Ed.2d 391 injunctive American court. The court denied relief, thinking apparently power- that it was case, In this prior judg- district court’s ment, grant argues which Caltex support less to it. can injunction against proceedings, the Louisiana thought that it stated that the prejudice,” pro- dismissed the claims “with prejudice applied only dismissal with ‍​​‌​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​​​‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌‌​‌‌‌‌‍to the allowing litigation vided certain сonditions relitigation Although of the f.n.c. issue. Philippines were met. The Caltex defen- court found “repug- tactics dants maintain that this precludes nant,” jurisdiction it held it had no litigating from their claims in federal, any state or enforce its decision it the United because conclud- States. dismissing grounds, ed that in on f.n.c. it had judgment not final entered a on a substantive prejudice” A “with dismissal has im

point of law. appeal The defendants now portant consequences: “It is clear that a injunctivе grant refusal to relief. or, stipulation prejudice, of dismissal with for matter, a prejudice any dismissal with at judicial stage proceeding, of a normally con III. judgment stitutes a final on the merits which bars a later suit on the same cause of action.” Anti-Injunction Act states: Chrysler Astron Indus. Assoc. v. Motors A may court of the United States not (5th 958, Corp., Cir.1968); 405 F.2d 960 see grant injunction stay proceedings 1B Luoas, also James W. Moore & D. Jo except expressly a State court autho- ¶ [1.-2], 0.409 at Federal Moore’s Praotioe by Congress, rized Act of or where neces- (2d 1995). conclude, III-140 ed. howev sary jurisdiction, protect aid of its or to er, that the dismissal on f.n.c. in this judgments. or effectuate its case, designated whether prejudice” as “with prejudice,” or “without cannot serve as the § 28 exception, U.S.C. 2283. The last “to judicata injunction res foundation for a later protect judgments,” or effectuate its is com- against the proceedings. Louisiana state monly “relitigation referred as the excep- Generally, judicata res acts as a bar tion.” injunctions District courts can enter subsequent to a suit when the resolution of as a means to judgments. enforce proceeding the initial has been “on the mer Royal Quinm-L Capital Ins. Co. Am. v. its,” suggests which the substantive (5th 877, Cir.1993), Corp., 3 F.3d 881 by claims have been addressed the court. — -, 1541, U.S. 114 S.Ct. generally Wright, See 18 Charles A. Ar (1994); Santopadre L.Ed.2d 193 v. Pelican thur R. Miller & Edward H. Cooper, Fed Ass’n, 268, Homestead & Sav. 937 F.2d (1981). § eral and Practice Prooedure (5th Cir.1991). judicata operates Rеs as a f.n.c., The common law by venue rule of by injunction bar —enforceable federal a—to contrast, procedure is a doctrine “of rather proceeding party which a seeks to than substance.” Dredging American v.Co. — relitigate claims that have Miller, been decided a -, -, U.S. (1994). federal court. L.Ed.2d 285 ended, inquiry however, Our is not as the matter, general As a federal courts application phrase use and “on the jurisdiction1 ancillary enjoin have relit imprеcise merits” has been at best. See 18 igation court; in state do not need a Wright, Cooper, supra, at 329-30. Miller & jurisdiction basis independent for that is This court has held that certain dismissals jurisdiction supported original that do not reach the substantive issues of judgment. Mooney Aircraft, Foster, Inc. v. litigation may regarded still as “on the (5th Cir.1984). 730 F.2d Ancillary purposes judicata merits” for pre of res jurisdiction manage enables a court “to its See, e.g., Anthony clusion. v. Marion Coun proceedings, аuthority, vindicate its and ef ‍​​‌​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​​​‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌‌​‌‌‌‌‍ ty Hosp., Gen. 1168-69 Cir.1980). fectuate its decrees.” Kokkonen v. Guard- 1, 1990, 1. For "supplemental actions filed on or after jurisdiction." December is now called See "ancillary jurisdiction” Ins., Royal is included within what 3 F.3d at n. 2. claim, specific defect provided that prop- same for this cases cite several Defendants WRIGHT, been corrected. See all of these has osition, Anthony. But Miller including Cooper Procedure, of the & involuntary dismissals Praotioe involve Federal cases 41(b), (stating that “a dismissal for § at 338 which by Fed.R.Civ.P. anticipated type jurisdiction improper or does lack of venue states: adjudication upon mer- operate as prosecute plaintiff to For failure omitted). its”) (footnote dismissal Such a any order these rules or comply with or to should, relitigation of the preclude dis- may move for defendant a venue, joinder jurisdiction, or specific issue of any against or of claim an action missal оf already id. resolved. See in its the court Unless the defendant. specifies, otherwise for dismissal order category of dismissals encom- The third any this subdivision under dismissal in this provided “not for passes dismissals rule, for in this includes, example, for a dismiss- rule.” This jurisdic- a dismissal lack other than comply with a failure to al for venue, tion, for failure improper or rule, provided for in the first sen- 19, operates as an Rule join a under party 41(b), court’s own but on the tence of adjudication upon the mеrits. the dismissal motion. grounds also dismissal ease—on f.n.c. a categories three distinct The rule creates —is According a 41. to provided for in rule category first involuntary dismissals. The of 41(b) treatise, in leading provision this rule to plaintiffs failure the includes cases difficulty,” as caused “has substantial rules of comply with the or to prosecute “[tjhere many that dismissal are rule states a court order. The procedure or categories the seem to fall within do not dismissals, speсi- unless otherwise these that yet clearly rule’ and ‘provided for in this courts, adjudications operate by as fied the adju- operate as an not —and do should circuit have Courts on the merits. not — the a on precludes that second action dication preclusive types of given these dismissals Wright, Miller & Coo- effect, claim.” See 18 has, same plaintiff the effect because 4435, at 333-34. supra, per, fair full and opportunity for a his abused and, thus, right to has the litigation forfeited Costello, several In the Court announced pursue his claim.2 41(b) rule that principles regarding general a analysis. involved our Costello “primarily now inform first-category dismissals These gov- in which the proceeding denaturalization the defendant in which involve situations good-cause affidavit file a failed to preparing to ernment incur inconvenience of must any proceeding prerequisite to that was a no initial there is because meet merits citi- sought to revoke government which reaching Costello them.” to the bar Court’s court dismissed 265, 286, zenship. The district States, 81 S.Ct. v. United affidavit (1961). Thus, failure to file the proceeding for logic first 534, 545, 551 5 L.Ed.2d specify whether but did not subsequent should be action that a dictates argued that defendant prejudice. The Id. following such a dismissal. barred and, there- merits” “on the the dismissal was includes category of dismissals The second attempting fore, from government barred improp- jurisdiction, for for lack dismissals a revocation. second join party as venue, to a for failure er or for that the dismissal The Court held These dismiss- 19. specified Fed.R.Civ.P. 41(b). 365 rule jurisdiction” under “lack of adjudications on the als are considered result, 285, at 545. As a not, U.S. at not, ordinarily should do merits pro- the second pursue government could litigating the later from preclude party (dis (holding that dismissal See, L.Ed.2d 355 e.g., Anthony, F.2d at 1168-69 617 merits); Reed, deposition appear at a is on to 861 failure prosecute); In re missal for failure Co., Treads, Armstrong 129 (5th Cir.1988) v. Rubber 1381, (holding Truck Inc. 1382-83 143, (W.D.Tex.1988), as modi discovery F.R.D. comply with failure dismissal for aff'd Cir.1989) (5th (dismissal for fied, merits); Security 868 F.2d 1472 Pac. Dillard orders is on the discovery treated as 607, (5th Cir.1988), rules Inc., comply with Brokers, failure to 835 F.2d merits). on U.S. ceeding. expressly Arguably, The Court held that the an f.n.c. dismissal falls under the jurisdiction” exception expansive “lack Court’s was not limit- definition of the “lack of 41(b). jurisdiction” language jurisdictional A ed to rule con- “the fundamental defects regarded “pre- venient forum could be as a judgment subjeсt render a which void and requisite condition going the Court’s for- attack, jurisdiction collateral such as lack of ward to determine the merits” of the claim. person subject over the or matter.” Id. In- 285,4 Id. at 81 S.Ct. at 545. stead, exception the Court broadened the cover “those upon dismissals which are based Strictly speaking, f.n.c. is comply precondi- failure to with a not a refusal to hear a case for “lack of requisite going tion to the Court’s forward to jurisdiction” 41(b); stated it is а determine the merits his substantive discretionary jurisdiction refusal to exercise ‍​​‌​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​​​‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌‌​‌‌‌‌‍Thus, claim.” Id. the failure to file the plainly does exist. While f.n.c. is not a encompassed by affidavit was the lack-of- “jurisdictional” concept, an f.n.c. dismissal jurisdiction exception.3 follows “the same rules” as a dismissal for jurisdiction improper lack of or venue. See above, As say noted the Court went on to WRIght, Cooper, supra, § Miller & first-category dismissals reflect a Moreover, dismissal, such аn f.n.c. policy whereby defendants should not be jurisdiction like a dismissal for lack of or plaintiffs misstep forced to suffer from a venue, improper “does not establish claim once have had to incur the inconve- preclusion”; preclude it can work the relit preparing nience of to meet the merits of the igation only of the f.n.c. issue in that court. case. Id. at 81 S.Ct. at 645. Id. at 346. Accord Mizokami Bros. v. Mo the Court involving found that situations bay Corp., Chem. 715-17 third-category dismissals “not Cir.1981). оperate adjudications this rule” should An f.n.c. dismissal is a “deliberate refus- only policy the merits supporting where the present- ] decide the substantive issues al first-category “equally dismissals is applica- ed” mistakenly because the court was chosen. ble.” Id. example, For if a court dismisses Wright, Cooper, See 18 supra, Miller & sponte plaintiffs case sua for the failure to 4436, Furthermore, § at apparent “[n]o order, comply with an the dismissal should justify reason exists to forfеiture of the un- regarded 287, be as on the merits. Id. at derlying upon claims a mistaken choice of S.Ct. at 545-46. tribunal,” id., gen- as the f.n.c. determination erally is begins made well before a court IV. address the merits of a claim. While specifically Costello did not address reason, For this latter our decision is the issue of a grounds, dismissal on f.n.c. we perfectly consistent with An Costello. f.n.c. give will not preclusive the instant dismissal dismissal is more akin to an initial bar to a effect, light even in prejudice” оf the “with court’s decision on the substance of a claim designation, Using princi- case. than to a situation in which the defendant ples Costello, announced considering has first incurred the pre inconvenience of doctrine, the basic nature of the f.n.c. we paring to meet the merits of the case. See regard cannot such an f.n.c. dismissal as Costello, “on 365 U.S. at 81 S.Ct. at 545. judicata the merits” for purposes Thus, res as to formulation, under Costello’s an f.n.c. 41(b) the entire clаim. ruling is type of rule ‍​​‌​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​​​‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌‌​‌‌‌‌‍dismissal that Costello, 3. For criticism of see 18 Wright, supervening provision.” than a venue Miller supra, § (calling at 334-336 Cooper, & interpretation "directly objectionable Court's be- 41(b), interpreting Because the Court was not slippery manipu- cause it involves so a method of lating concept jurisdiction”). longstanding and because of the distinction be 1404(a) tween a 28 U.S.C. f.n.c. transfer and pronouncement 4. The Court’s recent in American forum, see, improper e.g., an Tel-Phonic Servs. v. Dredging suggests might that an f.n.c. dismissal Int'l, Inc., TBS Cir. "improper provision fall under the venue” 1992), we treat an f.n.c. dismissal as distinct 41(b). Although interpreting the Court was not "improper from an venue” dismissal. 41(b), nothing it stated that f.n.c. "is more or less designated as case the dismissal ent rule but never- in the for” provided “not is however, adjudication Functionally, as an operate prejudice.”6 “with does theless claim.5 the entire “on the merits” The dis- equivalent.7 two are these cases made because in both cases was with missal in this case our decision reconcile 41(b) that, by noting that the a forum while had chosen language carry preclusive some above, does f.n.c. As noted was “inconvenient.” proper, fact, as is, the merits” “on effect ruling f.n.c. cannot limited nature of the adjudication It is the rule: an for in forever plaintiffs’ claims serve to bar The f.n.c. itself. issue the merits” “on from U.S. courts.8 in a litigate claims attempt to their “with was dismissed court Texas federal V. a federal they chose insofar prejudice” manipulating fora in Plaintiffs’ tactics be It would as their forum. in Texas court judg- this the district “repugnant,” further that hold this case are unwarranted to injunction an the basis observed, constitutes they per- ment are but properly court proceeding. separate, state court against a follow. Cer- law that we must mitted contemplated that a federal tainly, has held Supreme Court defendants The not serve issue does ruling the f.n.e. Philiр- subject only suit in the to a would be court, same state. even a state bind the f.n.c. dismissal. pines following issue, court federal a Texas ease In the at free, to formu- is of Louisiana State f.n.c. prejudice on without had dismissed fit the bounds of as it sees within late its laws attempted to file then plaintiff grounds. The Choo, it Kam Chick Under the Constitution. upheld court court. This in Texas state suit prerogative choose Louisiana’s is proceeding. against the state injunction in its own doctrine of f.n.c. recognize the Choo, 817 F.2d Kam Corp. v. Chick Exxon improper for this It courts. would rav’d, (5th Cir.1987), their pursuing plaintiffs from preclude (1988). In re L.Ed.2d solely court based state claims Louisiana “whether noted that versing, the Court on f.n.c. court dismissal upon forum appropriate are an Texas courts has not Singapore grounds. law claims petitioner’s fore injunction to litigated, and an yet been the district judgment of Accordingly, the is not within that issue close consideration injunction, is AF- refusing to issue U.S. аt exception.” relitigation the FIRMED. Thus, only that issue the at 1691. 108 S.Ct. decided court had federal district the GARZA, Judge, with Circuit EMILIO M. un be dismissed the should whether claims STAGG,9 SMITH, Judge, and Circuit whom Id. at f.n.c. doctrine. der the federal concurring: join, specially Judge, District at 1690-91. searching review of and After careful are Kam Choo case and Chick The instant law, I case the relevant and pres- both the record similar, exception that with the order that States, in that appealed, indicated latter now Wеissinger F.2d 795 5. v. United here, princi- (en banc), controlling recognize the 1970) as it does not Louisiana is not because Cir. f.n.c., [by plaintiffs] in ex- interpretation sentences is ple of three conduct “no involved rule 41(b) judgment.” deleted. Those since have been posed this court's final that violates in non- verdict provisions for a directed allowed final to earlier referred the the court time, covered juiy Fed.R.Civ.P. cases. At "addressing conve- non judgment the forum 41(b) Thus, in only jury the trials. contеm- Plainly, court never the issue." niens plated trial" a “full-blown Weissinger after made prejudice” was as "with that its dismissal findings of "lengthy following and careful and claims, issue opposed the f.n.c. to of law.” 423 fact and conclusions Thus, attorneys are saved plaintiffs' here only. that, time, entailed, a dismissal Weissinger at that appeal the "with timely to their failure from effect, have referred what we earlier in fell under ruling. prejudice” Thus, both category of the first dismissals. to as Weissinger holding todаy consistent are our and argument, Thus, the contrary to defendants' 8. with Costello. case” effects issue-preclusive of the and “law extend to ruling case cannot f.n.c. the prejudice" and the words “with We note that 6. court. 41. in rule prejudice” are not used “without special joins con- reluctantly Judge Stagg the 9. court, the dis- entered both which 7. The district underly- opinion the the He is of currence. that is order and the missal f.n.c. majority defendants, however, conclude that I must cоncur the are not blame- opinion. separately I emphasize write this According record, less here either. to the at employed Court’s disdain for the tactics least some of the defendants discovered the During litigation, this case. plain- this the 1991,we, Louisiana suit as early as 1990. In ball, attorneys tiffs’ hid defendants’ knowing without the contents of the Louisi- attorneys ball, dropped the and the courts suit, ana mentioned it in a footnote in Baris holding bag. were left I, I. Further, Baris 932 F.2d at 1549 n. 13. year priоr filing One suit in Texas state plaintiffs gave cursory the suit treatment court, plaintiffs essentially filed identical in their brief to the district before its court, suit Louisiana state with instruc second dismissal for non conveniens. forum “please tions to withhold service at this Yet at no seeking injunc- time this time.” The apparently Louisiana suit was tion did the specifically defendants raise the suit, back-up designed plain to ensure that issue of the Louisiana suit before the district tiffs would have a forum their claims in court. It is true that Caltex was not served they United States in the event were they until but were aware of the suit in unable to maintain suit in Texas. their To latest, prior 1991 at the protect interference, the district court’s the Louisiana from suit plaintiffs made concerning no statements second non conveniens dismissal. forum existence, the lawsuit’s keeping the suit “se The brought defendants should have the suit cret” until Only after we remanded to the attention of the district court. Wheth- Lines, Inc., the casе in Sulpicio Baris v. 932 er their decision to remain silent was an (5th Cir.), F.2d 1540 oversight or a miscalculated tactical decision 116 L.Ed.2d 449 we do not know. The result is that (“Baris ”) plaintiffs I possi did the raise the subject the defendants are now suit bility being Louisiana suit affected both Louisiana and Philippines, proceedings in Texas federal judicial much energy time and have been only in passing. then Had the district court wasted. fully been aware of the contents of the Loui suit, siana may it differently. have ruled In Thе district court did have sufficient stead, charade, continued their necessary information proper to make a rul- imploring this Court and the district court to ing in litigation. the Texas lawyers’ It is the make sure adequate had an and avail responsibility to supply the courts with this foreign able forum dismissing before their information. forthrightness, such Without Texas action. The federal dutifully courts justice suffers. It did here. so adjudicated issue, this and the district court ultimately required the defendants to be POLITZ, Beforе Judge, Chief amenable to Philippines. suit GARWOOD,JOLLY, HIGGINBOTHAM, Having successfully hidden the Louisiana DAVIS, JONES, SMITH, DUHÉ, suit, however, plaintiffs are now allowed to WIENER, BARKSDALE, M. EMILIO pursue essentially the same claims in both GARZA, DeMOSS, BENAVIDES, Louisiana and the Philippines, and the defen- STEWART, DENNIS, PARKER and dants against subject- have no defense being Judges.* Circuit ed to suit in places. both We find manipulation of fora in deplorable. this case expect attorneys, court, as officers of the ON PETITION FOR REHEARING AND forthright be more in their actions ‍​​‌​‌‌​​‌​‌‌​​‌‌‌​‌‌‌​​​​‌‌‌‌‌‌‌​​​‌​‌‌‌‌‌‌​‌‌‌‌‍before SUGGESTION FOR REHEARING Instead, the courts. attоrneys these chose to EN BANC manipulate courts, wasting our valuable energy.10 time and March ing tion, case Philippines should be tried having without to decide whether a Death nowhere else. High on the Seas Act claim is removable. See Lines, Inc., Sulpicio Baris v. Further, we note that once the defendants (5th Cir.), & n. 3 petition filed their to remove the Texas suit to (1991) (“Baris I"). 116 L.Ed.2d 449 plaintiffs neglected to move to * thirty days. Judge remand consequence, King within As a is participate recused did not we concluded jurisdic- that the district „ court had this decision.

BY THE COURT: service in active the court

A member suggestion poll on the a

having requested majority en banc and

rehearing favor having voted service

judges in active banc, rehearing en granting this cause shall

IT IS ORDERED argu- oral banc with court en

reheard be fixed. date hereafter on a

ment briefing schedule for specify a will

Clerk supplemental briefs.

filing of America, STATES

UNITED

Plaintiff-Appellee, Defendant-Appellant. LOPEZ,

Antonio

No. 95-50113. Appeals, Court

United States

Fifth Circuit. 23, 1996.

Jan.

Case Details

Case Name: Baris v. Sulpicio Lines, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 23, 1996

Citation: 74 F.3d 567

Docket Number: 94-20498

Court Abbreviation: 5th Cir.