Continuing a theme seen in an earlier DOGE-related ruling, a district judge in Washington DC denied a TRO in a data-access case, observing: “The court is aware that DOGE’s unpredictable actions have resulted in considerable uncertainty and confusion for Plaintiffs and many of their agencies and residents. But the ‘possibility’ that Defendants may take actions that irreparably harm Plaintiffs ‘is not enough.'” (emphasis in original, citations omitted).

The plaintiff in Pie Development v. Pie Carrier Holdings, Inc. tried to have its pie and eat it too, encountering a res judicata bar as a result of previous litigation. Specifically, in the earlier case, the plaintiff was given leave to replead and instead elected to appeal, after which the Fifth Circuit affirmed. In this, second, case, the Court held:

After the district court dismissed the Pie I claims without prejudice, Pie Development declined the opportunity to amend its complaint in the district court and chose instead to appeal. Although we have not directly addressed the application of res judicata in these unique circumstances, our caselaw suggests that there is a final judgment on the merits in such a case. When a prior action is dismissed without prejudice and the plaintiff, declining the opportunity to amend the complaint, appeals, the dismissal without prejudice converts to a dismissal with prejudice and constitutes a final judgment on the merits for res judicata purposes.

No. 24-60155 (Feb. 3, 2025).

I make a provocative point in Salon today, suggesting that a litigant unwilling to respect judicial mandates should not expect a warm welcome from the courts.

Standing rules apply to the left and the right, as shown by the District of the District of Columbia’s recent dismissal on standing grounds of a lawsuit brought by labor unions about the “buyout program” for federal employees. The plaintiff unions had the same threshold problems that the doctors’ organizations had in the Supreme Court’s mifepristone opinion from 2024.

In National Automobile Dealers Assoc. v. FTC, the Fifth Circuit vacated the FTC’s “Combating Auto Retail Scams Trade Regulation Rule” (CARS Rule) because the FTC failed to to issue an advance notice of proposed rulemaking (ANPRM) as required by its own regulations.

The court rejected the FTC’s argument that the Dodd-Frank Act exempted it from the ANPRM requirement.  While the Dodd-Frank Act allows the FTC to use regular APA procedures for rulemaking concerning auto dealers, it does not eliminate the FTC’s internal procedural safeguards. A dissent argued that the petitioners failed to show prejudice from the lack of an ANPRM, given their extensive participation in the rulemaking process. No. 24-60013, Jan. 27, 2025

Airlines for America v. DOT addressed when additional rulemaking notice is called for because of new factual information. The Fifth Circuit concluded that the Department of Transportation (DOT) had relied on new data from a study study, to justify its rule on airline fee disclosures without providing an opportunity for public comment on this data.

This omission was material because the study supplied basic assumptions used by the DOT to estimate the net benefits of the rule, which ranged from $30 million to $254 million annually. The Court stated that the DOT’s reliance on this new data without public input constituted a “serious procedural error.” Nos. No. 24-60231 and 24-60373 (Jan. 28, 2025).

The Fifth Circuit returned to the question of standing in Airlines for America v. DOT, as to the standing of Texas to challenge the DACA program. The Court reaffirmed that Texas has standing based on a “pocketbook-injury theory,” which asserts that the presence of DACA recipients imposes significant financial burdens on the state.

Specifically, Texas argued that it incurs over $750 million annually in costs related to emergency healthcare and public education for DACA recipients. The Court stated:  “Texas has made this showing by putting forward sufficient, unrebutted evidence to support the ‘common-sense assertion’ that, absent DACA, some recipients would leave the United States.”

The Supreme Court and the Fifth Circuit have not seen eye-to-eye in a number of recent cases that present questions of standing. In this case, however, the Court concluded that these recent cases did not unequivocally overrule the Fifth Circuit’s prior holding in an earlier appeal that concluded Texas had standing to challenge DACA. No. 23-40653, Jan. 17, 2025.

Texas Bankers Association v. CFPB presents a sign of the times, with the change of Presidential administrations: “A new President was inaugurated January 20, 2025. This case had already been set to be orally argued on February 3, 2025. The morning of oral argument, CFPB notified the court that “[c]ounsel for the CFPB has been instructed” by new leadership “not to make any appearances in litigation except to seek a pause in proceedings.” Accordingly, although both sides appeared in court as scheduled, only Texas Bankers addressed the merits.” No. 24-40705 (Feb. 7, 2025). A temporary stay was then ordered to allow the CFPB to finalize its decisionmaking about the case.

Cook v. Marshall addressed the issue of citizenship of a trust for jurisdictional purposes. The Fifth Circuit noted that “traditional trusts . . . were not considered distinct legal entities at common law, and hence cannot sue or be sued in their own name.”  Under that rule, only the citizenship of the trustee parties matters for diversity purposes.  Applied here, that rule means that complete diversity existed because the trustee parties, Cook and Marshall, were citizens of different states—Louisiana and Texas, respectively. The Court referenced the Seventh Circuit’s approach in the 2018 case of Doermer v. Oxford Fin. Group, which held that “when a trustee of a traditional trust ‘files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes.'” No. 24-30222, Jan. 23, 2025

My friend Arturo Ayala at CSBA recently wrote this useful article about what happens to a supersedeas bond when the appeal ends.

In McDonnell Grouo, LLC v. Starr Surplus Lines Ins. Co., the Fifth Circuit addressed the perennial topic of contract ambiguity; in this case, in the context of a builder’s risk insurance policy. The court affirmed the district court ‘s conclusion that the flood deductible provision in the policy was ambiguous.

The ambiguity arose from the language: “5% of the total insured values at risk at the time and place of loss subject to a $500,000 minimum deduction as respects … FLOOD.” The plaintiffs and the insurers had reasonable interpretations of this provision, but extrinsic evidence, in the form of industry standards and expert testimony, resolved the ambiguity. That extrinsic evidence clarified the term “VARTOL” (value-at-risk-at-time-of-loss) to mean the total value of the project at the time of loss, favoring the insurers’ interpretation. No. 23-30824, Jan. 29, 2025.

Bruen, Rahimi, and their history-focused perspective on the Second Amendment led to a firearms restriction being held unconstitutional because:

“[T]he text of the Second Amendment includes eighteen-to-twenty-year-old individuals among ‘the people’ whose right to keep and bear arms is protected. The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 19th century evidence ‘cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'”

Reese v. BATF, No. 23-30033-CV (Jan. 31, 2025) (citation omitted). (A demographer would note that the average lifespan in the 1790s was about 40 years, providing some perspective on the framers’ views about aging, although that number is likely skewed downward by the high infant mortality of the time.)

While the rescission of the recent “funding freeze” memo seems to end the present dispute, history teaches that the issues will return in new form, as was seen with the travel ban at the start of the first Trump Administration, vaccine mandates, and the efforts of the Biden Administration to forgive substantial amounts of student-loan observations. “Round Two” will doubtless feature a more focused assertion of executive power by the Trump Administration, and also more sophisticated challenges to that assertion – including the selection of substantive legal arguments and the identification of plaintiffs who have strong standing positions.

A new lawsuit brought by several state AGs expands the legal claims about the “funding freeze” to include several constitutional issues – whether those additional issues survive standing / justiciability challenges remains to be seen. To date, the Administrative Procedure Act claims have focused on OMB’s authority and not the longer-term issue of just what exactly agencies are supposed to do while the “freeze” is in place – and how that comports with the APA and those agencies’ enabling statutes and mandates.

Today’s ultra-aggressive “funding freeze” memo appears to be right out of the Dobbs playbook – take an action that is not allowed under current law (the Mississippi law at issue in that case, which was plainly unconstitutional under Roe/Casey) and present it to the modern-day Supreme Court conservative supermajority.

Understandably, public comment on the memo has focused on the Nixon-era Impoundment Act. But at the courthouse, the first filed lawsuit focused on the old warhorse of the Administrative Procedure Act – the law that repeatedly stymied aggressive administrative-agency action in both the Biden and the first Trump administration.

That’s wise as a matter of substantive law – there are fruitful arguments to be made under the APA – and as a matter of avoiding the Dobbs playbook of presenting a flashy constitutional issue. “Another” APA case is simply a less compelling topic for the Supreme Court to address.

In Baker Hughes Saudi Arabia Co. Ltd. v. Dynamic Indus., Inc., the Fifth Circuit addressed the issue of arbitrability under a subcontract for an oil-and-gas project in Saudi Arabia. It reversed the district court’s decision that denied a motion to compel arbitration, holding that the dissolution of the “DIFC-LCIA” (the arbitral authority specified in the agremeent) did not make the arbitration agreement unenforceable.

The Court emphasized that the parties’ dominant purpose was to arbitrate disputes generally, rather than to arbitrate exclusively before the DIFC-LCIA, so “the forum-selection clause (if it is one) is not integral to the subcontract ….” The Court further clarified that even if the DIFC-LCIA was unavailable as a forum, the district court should have considered whether the DIFC-LCIA rules could be applied by another available forum. No. 23-30827 (Jan. 27, 2025).

The Supreme Court clarified what pleading is relevant to a remand motion in a removed action, holding:

[T]he District Court here should have remanded Wullschleger’s suit to state court. The earliest version of that suit contained federal-law claims and therefore was properly removed to federal court. The additional state-law claims were sufficiently related to the federal ones to come within that court’s supplemental jurisdiction. But when Wullschleger amended her complaint, the jurisdictional analysis also changed. Her deletion of all federal claims deprived the District Court of federal-question jurisdiction. And once that was gone, the court’s supplemental jurisdiction over the state claims dissolved too. Wullschleger had reconfigured her suit to make it only about state law. And so the suit became one for a state court.

Royal Canin USA, Inc. v. Wullschleger, No. 23-677 (U.S. Jan. 15, 2025).

A case about hydrogen sulfide exposure foundered for lack of proof as to “general causation.” In examining the materials cited by the plaintiff’s expert on that point, the Court observed:

“Although we view the reliability of expert testimony ‘in light of the totality of the evidence,’ ‘[t]he totality of the evidence cannot prove general causation if it does not meet the standards for scientific reliability established by Havner. A plaintiff cannot prove causation by presenting different types of unreliable evidence.'”

Newsome v. Int’l Paper Co., No. 24-20126 (Jan. 11, 2025).

In Ambler v. Nissen, a Fifth Circuit panel dismissed a qualified-immunity appeal because of the materiality of the fact issues presented. The full court denied en banc review in a close vote:

A panel majority, after a motions panel accepted an interlocutory appeal, dismissed that appeal for lack of jurisdiction. The issue involved the appropriate measure for the calculation of “reasonable royalty” damages, and the majority reasoned:

If we reversed now, we would have no “immediate impact on the course of the litigation” because Silverthorne has not yet proven liability. The parties will proceed to trial regardless of whether we weigh in, and “nothing that we can do will prevent [the] trial.” Bear Marine, If Silverthorne fails to establish liability, our premature answer to the question will not have affected the litigation at all. Any dispute
about damages will have “evaporate[d] in the light of full factual development.” 

Even assuming arguendo that Silverthorne could establish liability, thereasonable-royalty standard may still not be controlling. Silverthorne claims that the district court’s order prevents it from proving damages. If that were true, the question could have controlled the case. As the district court noted, though, its order did “not automatically bar [Silverthorne] from proving damages,” as long as it does so according to the standard defined in [precedent].”

J.A. Masters Investments v. Beltramini, No. 24-20006 (Jan. 3, 2025) (citations and footnote omitted). A dissent had a different view of the legal issue and the section 1292 process.

“Plaintiffs contend that the district court erroneously permitted Mauro Beltramini (Beltramini’s son) to testify regarding the expenses incurred from the soccer matches when he had no personal knowledge or involvement with any of the matches. Even if that were true, Plaintiffs’ objection to Mauro’s testimony cannot be squared with their later assent to admit Joint Exhibit 1, an exhibit that included Mauro’s expenses calculations—the same exact content of his testimony. Plaintiffs have therefore waived any right to complain about it on appeal.”

J.A. Masters Investments v. Beltramini, No. 23-20292 (Jan. 3, 2025) (emphasis added).

Section 230 of the Commuications Decency Act says that no interactive computer service “shall be treated as the publisher or speaker” of third-party content. That law was of no help to a claim against Salesforce about alleged human trafficking, as the Fifth Circuit explained in A.B. v. Salesforce, Inc.:

Plaintiffs allege that Salesforce knowingly assisted, supported, and facilitated sex trafficking by selling its tools and operational support to Backpage even though it knew (or should have known) that Backpage was under investigation for facilitating sex trafficking. In essence, Plaintiffs allege that Salesforce breached a statutory duty to not knowingly benefit from participation in a sex-trafficking venture.

To state the obvious: this duty does not derive from Salesforce’s status or conduct as a publisher or speaker and would not require Salesforce to exercise publication or editorial functions to avoid liability. Rather, the duty simply requires that Salesforce not sell its tools and operational support to a company it knew (or should have known) was engaged in sex trafficking. This is not an action “quintessentially related to a publisher’s role.” Accordingly, section 230 does not immunize Salesforce from Plaintiffs’ claims.

No. 23-20604 (Dec. 19, 2024) (citations and footnotes omitted).

This notice, under Fifth Circuit precedent, abandoned the lender’s intent to accelerate a note obligation:

To the extent you have received demand letters with intent to accelerate the obligations under the above subject Note and any notice of acceleration of said Note prior to the date of this demand letter, be advised that any such demands or notices of acceleration have been withdrawn, cancelled, and abandoned.

No. 23-50662 (Dec. 20, 2024) (emphasis in original). The opinion discusses how the Circuit’s “rule of orderliness” applies to the issue at hand.

In a commerical fiduciary-duty dispute, DALF Energy v. GS Oilfield Services holds: “DALF proved each element of its breach of fiduciary duty claims based on Scribner’s falsification of production records, failure to disclose his relationship to O&GH, and failure to disclose his father’s relationship to TROFA”; and also: “DALF proved Scribner breached his fiduciary duty by placing ;P.E.’ after his name and failing to disclose his relationship to GSOS.” No. 24-50032 (Dec. 30, 2024).

Stone v. Graham, 449 U.S. 39 (1980), holds:

“Posting of religious texts on the wall  serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.“

Unsurprisingly, then, the Fifth Circuit voted 14-3 on December 30 to reject an overly enthuastic application for en banc hearing in Roake v. Brumley – the challenge to a Louisiana law about display of the Ten Commandments that is flatly inconsistent with the above Supreme Court holding.

A complex set of appeals about the Serta bankruptcy produced this on-target introduction – not phrasing that should be used in most cases, but completely apt for these complicated finance issues:

Illustrating the choppy waters that can surround a nationwide injunction, in December, Fifth Circit judges reached three different conclusions about whether to stay the Corporate Transparency Act and related administrative rules. The motions-panel majority held:

The district court concluded that both are unconstitutional and issued nationwide injunctions against each, despite no party requesting it do so and despite every other court to have considered this issue tailoring relief to the parties before it or denying relief altogether.

The third member of the motions panel concurred in part:

[She] agrees for an expedited appeal and agrees that a national injunction is not appropriate here, so she would grant a temporary stay of the preliminary injunction pending the decision of the merits panel regarding whether to deny a stay pending appeal as to the non-parties. However, she would deny the temporary stay as to the parties (while, of course, deferring to the merits panel on this point as well), including the members of NFIB, as long as their identities are disclosed to the government.

A later per curiam order, which may have issued from the merits panel, or may simply reflect communication with that panel, reached a different conclusion:

The merits panel now has the appeal, which remains expedited, and a briefing schedule will issue forthwith. However, in order to preserve the constitutional status quo while the merits panel considers the parties’ weighty substantive arguments, that part of the motions-panel order granting the Government’s motion to stay the district court’s preliminary injunction enjoining enforcement of the CTA and the Reporting Rule is VACATED.

These changes show how minor variations in panel makeup can have profound consequences when nationwide equitable relief is at issue. (The party-presentation issue referred to by the motions-panel majority is also addressed in my recent Cornell Law Review essay.)

In Alliance for Fair Board Recruitment v. SEC, the en banc Fifth Circuit held that the SEC should not have approved Nasdaq’s “Board Diversity Proposal.”

The Court reminded that the Act is focused on protecting investors from speculative, manipulative, and fraudulent practices, and promoting competition in the securities market; therefore: “SEC may not approve even an a disclosure rule unless it can establish the rule has some connection to an actual, enumerated purpose of the Act.” It rejected the SEC’s argument that the proposal would satisfy investor demand for diversity information, holding: “The purpose of satisfying investor demand for any and every kind of information about exchange-listed companies is not remotely similar to any of those stated purposes.” 

Cf. McCullough v. Maryland,17 U.S. 316 (1819) (“Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.”).

The Court also found support for its holding in the major questions doctrine, given the expansive regulatory authority that it concluded would be needed for the SEC to implement the proposal. A dissent argued that the SEC had received substantial evidence that investors sought standardized information on board diversity, and noted the SEC’s limited statutory authority to review the rules of Nasdaq, a distinct and private entity (albeit one that is heavily regulated). No. 21-60626, Dec. 11, 2024 (9-8 vote).

Judge Oldham’s thoughtful dissent from the recent wreckage of an en banc proceeding provides fascinating historical background about courts’ traditional focus on decisions rather than opinions. That basic concept about the operation of appellate courts is useful in distinguishing holding from dicta, identifying the appropriate scope of appellate review, and clarifying questions about the law of the case / res judiciata effect of earlier judgments.

By including Roman courts in its historical review, the opinion reminds how much the American system has borrowed from the civilian tradition – a point of particular interest in Texas, where opinions from the 1840s by the Republic of Texas Supreme Court vividly illustrate the jostling between the English/American and Spanish/French systems on issues of property law at that time.

Lengthy en banc deliberation produced a one-paragraph, per curiam affirmance in Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., a long-running challenge to a $20 million environmental fine. Judge Oldham’s dissent summarizes the bewildering array of votes and opinions:

The case of Chaudhary Law Firm, P.C. v. Ali reminds: “It is more than well-settled that only an aggrieved party may appeal a judgment.”  A party is not considered “aggrieved” if they have received a favorable judgment, even if the trial court made subsidiary findings or conclusions that were unfavorable to them.

The Court emphasized that “appellate courts review judgments, not opinions,” and a winning party “may not appeal for the sole purpose of seeking a more favorable opinion from the [trial] court.” The Court noted some situations that could warrant a relaxation of this principle, none of which were present in this case, where the defendant law firm obtained complete dismissal on the merits. No. 23-20362 (Dec. 9, 2024).

Savoie v. Pritchard affirmed that there is “life within” the fiduciary shield doctrine in Louisiana law. The doctrine prevents the exercise of personal jurisdiction over a corporate officer based solely on their corporate acts, and is “rooted in the principle that the acts of a corporate officer in his corporate capacity cannot form the basis for jurisdiction over him in an individual capacity.”  In this Erie case, the Fifth Circuit found implicit recognition of the doctrine in a Louisiana Supreme Court case.

The Court emphasized that “contacts made in [the defendant’s] corporate capacity do not count against him for purposes of personal jurisdiction unless one of two exceptions apply: (1) the defendant allegedly engaged in a tort for which he may be personally liable, or (2) the plaintiff demonstrates cause to pierce the corporate veil.”  No such claim was pleaded here or shown here, so the fiduciary shield doctrine barred personal jurisdiction over the defendant. No. 23-30783, Nov. 25, 2024.

This week, the Eastern District of Texas enjoined a sweeping set of Treasury regulations about disclosure of beneficial ownership, concluding that the Corporate Transparency Act and related regulations exceeded Congress’s constitutional powers. The Northern District of Texas rejected Boeing’s plea bargain of charges related to the 737 MAX debacle, concluding that inappropriately required consideration of race in selecting the monitors for a program that would administer Boeing’s compliance with agreed obligations going forward. The Boeing ruling may yet be resolved in the trial court, as the judge asked the parties to report back in 30 days, but the CTA case will certainly be headed to the Fifth Circuit soon.

In Van Loon v. Dep’t of the Treasury, the Fifth Circuit addressed the Treasury Department’s authority to regulate “property” under the International Emergency Economic Powers Act. After a detailed explanation of the blockchain technology involved, the Court held that certain “immutable smart contracts” do not qualify as “property” under IEEPA. The Court emphasized that “property” must be capable of being owned, and since the immutable smart contracts are unchangeable and unremovable, they cannot be owned or controlled by any entity, including their creators.

The Court further clarified that even under the Treasury’s own regulatory definitions, the immutable smart contracts do not fit within the scope of “property.” The court noted that these smart contracts are neither contracts nor services, as they do not involve any human effort or control once they are deployed. No. 23-50669 (Nov. 26, 2024).

In Willis v. Barry Graham Oil Service, L.L.C., the Fifth Circuit read the relevant contract provisions differently than the district court.

The district court concluded that Barry Graham Oil Service did not fall within the defense, indemnification, and insurance provisions of the Master Services Contract (MSC) between Shamrock Management and Fieldwood Energy. Specifically, it found that Graham was not covered by the MSC’s indemnity provisions because it was not part of the “Third Party Contractor Group” defined in the contract.

The Fifth Circuit held that Graham was covered under the MSC’s indemnity provisions. The MSC required Shamrock to “release, indemnify, protect, defend, and hold harmless such other Third Party Contractor(s) (and any such Third Party Contractor Group),” from claims arising from injuries to Shamrock’s employees.

Therefore, Graham, as part of Kilgore Marine Services’ Third Party Contractor Group, was entitled to indemnification. The contractual trigger for these obligations—cross indemnification “substantially similar” to Shamrock’s—was satisfied, obligating Shamrock to defend and indemnify Graham. No. 23-30609, Nov. 20, 2024.

In State of Texas v. U.S. Dep’t of Homeland Security, the Fifth Circuit addressed a challenge by Texas to a federal plan to cut razor wire installed by Texas at a border crossing. A 2-1 opinion ordered entry of a preliminary injunction against the planned wire-cutting.

The panel majority held the Administrative Procedure Act “clearly waives the United States’ sovereign immunity for Texas’s common law claims,” allowing Texas to seek injunctive relief against federal agencies and officers. In particular, Texas’s claims sought non-monetary relief and were based on the destruction of its property, which falls under the definition of “agency action” in the APA.

The majority also held that Texas showed a strong likelihood of success on its state law trespass-to-chattels claim–the concertina wire is state property, and Texas had shown that the federal agents’ actions were not justified by any exigency or statutory authority. As a result, the court granted Texas’s request for a preliminary injunction, enjoining federal agents from damaging or interfering with Texas’s concertina wire fence.

A dissent argued that Texas did not show the alleged “wire-cutting policy” constituted final agency action, which is a prerequisite for judicial review under the Administrative Procedure Act (APA). It also concluded that Texas’s state law claims were barred by intergovernmental immunity, as applying Texas tort law to federal agents would improperly control federal operations. No. 23-50869 (Nov. 27, 2024).

Cocroft v. Graham  addressed the constitutionality of Mississippi’s restrictions on medical marijuana advertising. Since marijuana remains illegal under federal law, including for medical purposes, Mississippi can lawfully restrict advertising related to it. The Fifth Circuit emphasized that “the First Amendment poses no obstacle to a ban on such speech” because the underlying commercial activity is not lawful under federal law.

Specifically, the Court rejected the plaintiffs’ argument that only the sovereign enacting the underlying prohibition (in this case, the federal government) could restrict related commercial speech. The Supremacy Clause ensures federal law’s primacy, making marijuana illegal in every state, including Mississippi. Therefore, Mississippi’s restrictions on medical marijuana advertising are constitutionally permissible. No. 24-60086, Nov. 22, 2024.

Jones v. Reeves grounded the long-flying litigation about governance of the Jackson Airport, observing:

There is also a fundamental disconnect between the Plaintiffs’ theory of employment-related injury, i.e. loss of per diem and travel reimbursement, and the remedy they seek, which is an injunction preventing abolition of the [Jackson Municipal Airport Authority]. … The elimination of JMAA and its replacement by the [Jackson Metropolitan Area Airport] Authority is the crux of this case. JMAA Commissioners’ per diem and travel expenses compensate and reimburse them only for their official duties as appointees. If the seat to which these duties are owed disappears, so too does the need for any associated reimbursement or compensation. With the elimination of the JMAA, there are no official duties requiring a per diem; and in the absence of JMAA -related travel expenses, there is nothing to reimburse.

No. 24-60371 (Nov. 19, 2024). Accordingly, the Court dismissed the case because the plaintiffs lacked individual standing, as their injuries were “institutional” and not personal.

Quoted in a recent American Prospect article, I muse that the New York AG probably won’t be headed down this way to sue the Trump Administration – link  here.

Contractual ambiguity is easily the #1 issue, in commercial cases, where thoughtful judges disagree. An example appears in Barrios v. Centaur LLC, where both the district court and the Fifth Circuit concluded that a maritime contract had two conflicting “escape” (i.e., “other insurance”) clauses. The district court found ambiguity, but the Fifth Circuit applied a Louisiana rule that “when faced with two escape clauses threatening coverage, courts must find them ‘mutually repugnant’ and make both policies liable for the claim” on a pro rata basis. No. 23-30892 (Nov. 15, 2024).

Texas Tribune v. Caldwell County affirms the right of public (and with it, pres) access to pretrial bail hearings, noting, inter alia:

Public access to bail hearings helps ensure, for example, that courts act fairly and justly in setting bail.46 When courts hold private proceedings, “[t]hey can . . . avoid criticism and proceed informally and less carefully.” Allowing public access encourages adequate preparation and, in turn, precision by the court. These assurances lead to “enhance[d] public confidence in the process and result” of the justice system.

The opinion also provides a sleek example of the “citational footnote” writing style that I believe significantly enhances readability. No. 24-50135 (Nov. 15, 2024).

A recent en banc vote produced an unusual 9-9 tie (and thus, affirmance of the panel opinion) because a senior judge sat on the relevant panel:

The majority opinion in National Center for Public Policy Research v. SEC found that a challenge to an SEC rule about the contents of proxy ballots was not justiciable, noting, inter alia:

     “[C]onsider the chain of assumptions the Center’s theory requires. First, we must anticipate that third-party companies uninvolved in this litigation will choose to exclude the Center’s measure in their proxy materials. We must do so mindful that many companies have since opted to include the Center’s measure without SEC intervention.   

       Next, we must assume the same third-party companies will base their exclusion decision on the same grounds as Kroger and seek SEC staff advice. No matter that at least thirteen independent reasons exist for excluding proxy statements, or that the SEC staff is under no obligation to offer its advice if requested.

     We must further assume that the SEC will issue the same no-action letter sent to Kroger, disregarding that staff advice is limited to each ‘particular instance.’ If SEC staff issues the letter, we must also infer that the third-party companies will ultimately follow through with their initial decision and exclude the proposal from their proxy materials.”

No. 23-60230 (Nov. 14, 2024) (emphasis added); accord FDA v. Alliance or Hippocractic Medicine, 144 S. Ct. 1540 (2024) (“The doctors have not shown that FDA’s actions likely will cause them any injury in fact. The asserted causal link is simply too speculative or too attenuated to support Article III standing.”). A dissent characterized thematter as one capable of repetition yet evading review.

Last Friday I received the inaugural “Lawyer’s Lawyer” award from the Dallas Bar Association, described by President Bill Mateja as a lawyer who “eats, breathes, and sleeps law” in comment and public thought about it. (Next to me is Courtney Marcus, filling in for Glenn West, who also received it.) Many thanks to Bill and the DBA, and to readers of this blog: longtime or new; enthusiastic or not!

Classically, judicial opinions consist of dicta and holding; the process of distinguishing the two and applying the correct rule of law in a specific case is the essence of the common-law method. A variant on that classical model sometimes arises in cases on remand from the U.S. Supreme Court, when the panel discusses that Court’s mandate; an example of which appears in the remand of NetChoice LLC v. Paxton, No. 21-51178 (Nov. 7, 2024).

The appellants in Legacy Recovery Servcs, LLC v. City of Monroe tried mightily, but was unable to persuade the Fifth Circuit that it had appellate jurisdiction over an order that partially granted and denied motions to dismiss.

The appellants argued that the ruling was an appelable collateral order. The Court saw otherwise, holding that the order did not “conclusively determine the disputed question” because it dismissed some claims while retaining others. Exercising jurisdiction over such an order risked encouraging piecemeal appeals that would require the Court to review the same intertwined claims multiple times.

Also, the issues resolved by the district court were not “completely separate from the merits of the action.” The dismissed and retained claims were based on the same statutes, and thus interwoven with the issues left  before the district court.

Lastly, the Court held that the order was not “effectively unreviewable on appeal from a final judgment,” pointing out that if the appellants’ concerns were valid, the Court could vacate the judgment and order a new trial after final judgment. No. 24-30211 (Nov. 6, 2024).

A 2-1 panel decision about an issue of federal-officer removal produced a close vote against en banc review, broken down as follows:

Even the most enthusiastic perspectives about federal-court jurisdiction have limits, as shown by Lowery v. Texas A&M Univ., a discrimination case filed by a college professor:

“Professor Lowery says that he is ‘able and ready’ to apply for lateral positions at [Texas A&M] University. But he never submitted an application to substantiate his interest. That fact is fatal in this case because there is little evidence that submitting a job application would be a futile gesture.”

No. 23-20481 (Oct. 30, 2024) (emphasis added).