The plaintiff in Newell-Davis v. Phillips challenged the constitutionality of Louisiana’s “Facility Need Review” for entrants into the respite-care business. The program requires Louisiana regulators to “determine if there is a need for an additional [respite care] provider in the geographic location” before a new business is authorized. The Fifth Circuit found that the program satisfied rational-basis review, noting:

The record supports the State’s assertions that FNR permits enhancement of consumer welfare by “allowing [LDH] to prioritize postlicensure compliance surveys that ensure client health, safety and welfare, over the resource intensive and costly initial licensing surveys.” For example, by limiting the number of providers in the respite care business, the State can focus its resources on a manageable number of providers, which aid it in ensuring that consumers receive the best possible care in their communities.

No. 22-30166 (Dec. 13, 2022).

Defense Distributed markets design files from which a rudimentary firearm can be made on a 3-D printer. This controversial product has drawn substantial attention from regulators, which in turn has led to litigation.

One part of that litigation, involving the New Jersey Attorney General, was transferred from Texas federal court to New Jersey federal court, after which a Fifth Circuit panel held that the transfer was erroneous. But New Jersey is not in the Fifth Circuit (right), and the New Jersey district court declined a request to voluntarily return the case.

Defense Distributed thus reloaded in Texas, “advanc[ing] two procedural theories to establish that the district court now has jurisdiction over their new request for a preliminary injunction against NJAG. One is that our court’s order to vacate the district court’s sever-and-transfer order automatically ‘revived’  plaintiffs’ claims against NJAG by operation of law. The second is that Federal Rule of Civil Procedure 15 allows plaintiffs to ‘refile’ their claims against NJAG, and they did so when they requested leave to amend to add NJAG to the existing case against the State Department in the Western District of Texas.”  (emphasis added).

The Fifth Circuit found that neither theory was viable after a case had been transferred out of its jurisdiction. It observed that “[t]here was a solution to the jurisdictional morass in which plaintiffs found themselves: [t]hey could have moved for a stay of the district court’s transfer order before the case was transferred.” Defense Distributed v. Platkin, No. 22-50669 (Dec. 15, 2022) (Haynes, J., concurring in the judgment only).

A specific federal statute, 28 U.S.C. § 1782(a), deals with discovery requests in aid of foreign litigation. In Banca Pueyo SA v. Lone Star Fund IX (US), L.P., the Fifth Circuit held that its precedent “cannot be read either for the proposition that adversarial testing may be precluded on the merits of a § 1782(a) application following an ex parte ruling [about the requested discovery], or that [Fed. R. Civ. P.] 45 furnishes the only means to challenge the initiation of the subpoenas approved ex parte by the district court.” No. 21-10776 (Dec. 13, 2022).

The Senate today confirmed Hon. Dana Douglas of Louisiana as the newest judge on the Fifth Circuit, taking a seat vacated by long-serving Hon. James Dennis. Welcome to the court, Judge Douglas! Louisiana’s Advocate has a thorough story about her confirmation hearings and personal background.

Valiant efforts to argue that various things were not “assets” under a contract did not succeed in Sanare Energy Partners LLC v. PetroQuest Energy, LLC:

The Properties are “Assets” under the PSA, including section 11.1, even if the Bureau’s withheld consent prevented record title for the Properties from transferring to Sanare. This conclusion is plain from the PSA’s text, which excludes Customary Post-Closing Consents such as the Bureau’s from the category of consent failures that alter the parties’ bargain. Consent failures that do not produce a void-ab-initio transfer also do not alter the parties’ bargain, so the Agreements, too, are Assets under the PSA’s plain text.

No. 21-20677 (Nov. 29, 2022).

12-3 (one recusal), the full Fifth Circuit denied en banc review in Freedom From Religion Foundation v. Mack, in which the panel found no coercion (and thus no standing) in a challenge to a Texas JP’s pre-court practices.

The Fifth Circuit found that the rule of lenity applied in a disciplinary proceeding involving this Louisiana ethics rule:

A division of fee between lawyers who are not in the same firm may be made only if: (1) the client agrees in writing to the representation by all of the lawyers involved, and is advised in writing as to the share of the fee that each lawyer will receive; (2) the total fee is reasonable; and  (3) each lawyer renders meaningful legal services for the
client in the matter.

It concluded that the rule was ambiguous when applied to successive rather than simultaneous counsel. In re Andry, No. 22-30231 (Nov. 29, 2022). The panel later granted rehearing and issued a revised opinion.