Following Pepi Corp. v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied.), the Fifth Circuit summarized when a quantum meruit claim could be pursued even when an express contract applies:

“First, recovery in quantum meruit is allowed when a plaintiff has partially performed an express contract but, because of the defendant’s breach, the plaintiff is prevented from completing the contract. …

Second, “[r]ecovery in quantum meruit is sometimes permitted when a plaintiff partially performs an express contract that is unilateral in nature.” [and]

Third, “a breaching plaintiff in a construction contract can recover the reasonable value of services less any damages suffered by the defendant if the defendant accepts and retains ‘the benefits arising as a direct result of the plaintiff’s partial performance.’”

Credos Indus. Supplies & Rentals, LLC v. Targa Pipeline Mid-Cont. WestTex, LLC, No. 22-20480-CV (March 24, 2023).

The en banc Fifth Circuit affirmed a nationwide injunction against President Biden’s federal-employee vaccine mandate, concluding that the relevant statute did allow federal jurisdiction over such issues. The breakdown of opinions in Feds for Medical Freedom v. Biden is as follows:

In a dissent from a dismissal order in Chapman v. Doe, Justice Jackson questioned whether the Supreme Court had become too quick to vacate judgments, noting, inter alia, that “our common-law system assumes that judicial decisions are valuable and should not be cast aside lightly, especially because judicial precedents ‘are not merely the property of private litigants,’ but also belong to the public and ‘legal community as a whole.'” (reviewing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).

As she was the sole dissenter on this point, her views are apparently not shared by a majority of that court, but her analysis is still thought-provoking and deserves study, as it examines a part of the appellate process that often goes largely unnoticed. Thanks to Ben Taylor for drawing my attention to this one!

Last year the Fifth Circuit held that the Consumer Financial Protection Bureau was funded through an unconstitutional mechanism that circumvented the Congressional appropriations process. That matter is now before the Supreme Court. The Second Circuit has now joined the fray in CFPB v. Law Offices of Crystal Moroney, P.C., No. 20-3471 (March 23, 2023), joining the D.C. Circuit in finding that the CFPB’s funding mechanism does not violated the Appropriations Clause.

Majestic Oil v. Certain Underwriters at Lloyd’s is an insurance coverage case in which the key issue is what caused a roof to leak. The plaintiff’s expert prepared a second report that added analysis of certain weather data; he characterized it as a permissible supplement to his original report, while the defense moved to strike it as containing an impermissible new opinion after the expert-report deadline.

The Fifth Circuit reversed the trial court’s ruling that struck the new report, remanding for more fulsome consideration of all four factors identified by Fed. R. Civ. P. 37(c)(1): “(1) the explanation for the failure to identify the [information]; (2) the importance of the [information]; (3) potential prejudice in allowings the timeliness of an expert report and the [information]; and (4) the availability of a continuance to cure such
prejudice.” No. 21-20542 (March 17, 2023, unpublished).

In a case about a school district’s liabilty for a student’s assault of another student, the Fifth Circuit declined to recognize a “state-created danger” exception to district officials’ immunity. The Court summarized:

     The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” “The Due Process Clause . . . does not, as a general matter, require the government to protect its citizens from the acts of private actors.” We have recognized just one exception to this general rule: “when [a] ‘special relationship’ between the individual and the state imposes upon the state a constitutional duty to protect that individual from known threats of harm by private actors.” However, “a number of our sister circuits have adopted a ‘state-created danger’ exception to the general rule, under which a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries that result.” … 

     The problem for [Plaintiff] is that “the Fifth Circuit has never recognized th[e] ‘state-created-danger’ exception.” In our published, and thus binding, caselaw, “[w]e have repeatedly declined to recognize the statecreated danger doctrine.” For this reason, [Plaintiff] “ha[s] not demonstrated a clearly established substantive due process right on the facts [she] allege[s].” The district court thus erred in denying qualified immunity to Appellants.

Fisher v. Moore, No. 21-20553-CV (March 16, 2023) (footnotes omitted).

My home city of Dallas was founded with the hope of becomging an inland port, using the Trinity River to connect North Texas with the Gulf of Mexico. Unfortunately, the Trinity turned out to be essentially unnavigable.

Lacking any navigable waters of my own, I am fascinated by opinions that define the “navigable waters” of the United States such as Newbold v. Kinder Morgan SNG Operator LLC. A fishing boat in the D’Arbonne National Wildlife Refuge ran into an underwater object; the case-dispositive issue was choice of law. If the accident did not occur in “navigable waters,” then Louisiana law controlled and the plaintiff would have no claim.

While the boat was, in fact, navigating at the time of the allision, the test excludes “recreational fishing” activity. The Fifth Circuit reviewed the relevant factors and found that the area the boat was in was not “navigable water” governed by federal law:

“[T]he location of the allision is on land that is dry 67 percent of the time, where vegetation is not destroyed and the land is not bare, as evidenced by the need to mow it with some regularity. More significantly, the Bayou D’Arbonne does have an ‘unvegetated channel’ which is some 597 feet wide at the location where the boat split off to fish near the sign. The sign was located 58 feet away from the unvegetated channel. The unvegetated channel is a neat, natural line by which the ordinary high-water mark may be established. Within the channel, there is no vegetation; outside of it, there is.” 

No. 22-30416 (March 14, 2023).

An unfortunate incident involving out-of-hand heckling of Judge Duncan at Stanford Law School, compounded by an administrator fanning the flames, led to an apology from Stanford’s president. Aside of general problems with good manners and common sense, this sort of thing isn’t even good protesting; cf. Tinker v. Des Moines ISD, 393 U.S. 503 (1969) (protecting “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners”).

New England Construction complained that large lumber companies monopolized the wood-products marked during the COVID-19 pandemic. Unfortunately for its claim, however, it only purchased the defendants’ lumber through intermediates (Lowes, Home Depot, etc.). It thus had no standing under the Illinois Brick line of authority, and the Fifth Circuit affirmed the dismissal of its claims. New England Construction, LLC v. Weyerhaeuser Co., No. 22-60329 (March 8, 2023) (unpublished).

Dream Medical Group v. Old South Trading Co. reminds how hard it is to challenge the merits of an arbitration award.

Dream Medical bought medical face masks from Old South. They had a contract dispute that went to arbitration with the AAA. Dream Medical won and Old South opposed confirmation.

Among other arguments, Old South complained that its fraudulent-inducement claim was mishandled, in that the panel violated a AAA rule by not fully considering Old South’s fraudulent-inducement claim, and thus came within the FAA’s provision about arbitrators who “exceeded their powers.”

The Fifth Circuit rejected that argument as an invitation for us to reasses the merits of the Panel’s decision.” It also noted that “manifest disregard of the law” is not a viable, nonstatutory basis for opposing confirmation under Fifth Circuit precedent. No. 22-20286 (March 6, 2023) (unpublished).

The Fifth Circuit updated its panel opinion in United States v. Rahimi. The holding  remains the same (that the federal law, criminalizing the possession of a firearm by someone subject to a domestic violence protective order, violates the Second Amendment), but the majority opinion adds explanation about what its holding does, and does not, affect. No. 21-11001 (March 2, 2023) (withdrawing and substituting prior opinion).

While I wrote an op-ed in the Dallas Morning News about the original opinion, noting that the Fifth Circuit had found the same statute constitutional under the pre-Bruen Second Amendment framework, I had not fully grasped the contrast until reading the revised opinion. The Fifth Circuit’s previous opinion turned on “means-end scrutiny” — in other words, a comparison of benefit and burden. The present opinion thus finds this law unconstitutional (as it must under its analysis of Bruen) even though Circuit precedent says that the law did not unduly burden gun rights when compared to the law’s policy objectives. It thus provides a particularly stark example of the impact of Bruen‘s history-only framework on the law in this area.