To the right is a painting of Julius Caesar crossing the Rubicon. A river-crossing issue also arose in Good River Farms, L.P. v. TXI Operations, L.P. A severe flood on the Colorado River breached a water reservoir on a commercial property, which in turn led to the flooding of a neighboring farm.

Liability under the Texas Water Code turned on whether “surface waters” (the water in the reservoir) caused the problem at the farm, or whether it was water from the Colorado River (not considered “surface water” under the Code, because the river is a “bed or channel in which water is accustomed to flow”).

The Fifth Circuit found sufficient evidence to support a judgment for the farm, reasoning that “[t]he jury apparently concluded that the water was not overflow fromthe river, but surface water accumulated in such quantity that it ran contrary to the riverine flow.” No. 23-50330 (April 25, 2024).

The Fifth Circuit reversed because of a new trial-court reply-brief argument in Georgia Firefighters’ Pension Fund v. Anadarko Petroleum Corp., reasoning:

A class of stock purchasers allege that Anadarko Petroleum Corporation fraudulently misrepresented the potential value of its Shenandoah oil field project in the Gulf of Mexico, in violation of federal securities law. During the class certification proceedings below, Plaintiffs presented new evidence for the first time in a reply brief. As a result, Anadarko did not have fair opportunity to address that new evidence at an earlier stage in the briefing. So the district court should have permitted Anadarko to file a sur-reply responding to that new evidence contained in Plaintiffs’ reply.

No. 23-20424 (April 24, 2024).

As noted previously, the Fifth Circuit denied en banc review by an 8-8 vote in a contentious forum dispute. The breakdown of the votes is follows (the entire panel majority opinion appears in the chart, and the panel dissent is reproduced as an exhibit to the dissent from the denial of en banc review):

The Fifth Circuit’s recent en banc vote in Consumers’ Research v. CPSC, an unsuccessful constitutional structure to the Consumer Product Safety Commission in light of recent Supreme Court precedent, is summarized in the below chart. The vote was accompanied by a concurrence and two dissenting opinions.

The Fifth Circuit’s recent en banc vote in Book People, Inc. v. Wong, a successful constitutional challenge to a prior-restraintish law involving the content of books in school libraries, is summarized in the below chart:

The Fifth Circuit reversed the dismissal of securities-fraud claims in Oklahoma Firefighters Pension & Retirement System v. Six Flags Entertainment Corp., holding that the district court had misread a prior appellate opinion. The Court stated, inter alia:

Any fair reading shows why our prior opinion very clearly did not hold the alleged fraud was fully disclosed by October 2019. The most obvious sign is the absence of any statement expressly concluding that all purported fraud was fully disclosed by October 2019 and that therefore, the class period was truncated. Given that such a conclusion would all but end the case as to Oklahoma Firefighters, it stands to reason that if that was actually our decision, we would have said so explicitly. To borrow a familiar phrase from statutory interpretation principles, we do not “hide elephants in mouseholes.”

No. 23-10696 (April 18, 2024) (citation omitted).

Recent dialogue about the benefits and drawbacks of single-judge judicial district has led to further public remarks, which have in turn drawn interesting rebuttal from commentators in Above the Law and Balls and Strikes.

(It bears mention in this discussion that the Alliance for Hippocratic Medicine – the lead plaintiff in the mifepristone litigation that touched off the present debate – was created three months before that litigation by several out-of-state anti-abortion groups, as explained in an informative Intercept article that discusses the broader history of such groups.)

Resolving another of the simmering venue disputes that have drawn considerable attention in recent weeks, the full Fifth Circuit denied en banc review (an 8-8 tie vote) of the denial of mandamus relief in In re SpaceX – a challenge to the district court’s order that transferred a dispute between SpaceX and the NLRB to the Central District of California.

The surprisingly slippery question whether Texas law allows a takings claim to proceed against the state came to an anticlimactic end with the Supreme Court’s opinion in DeVillier v. Texas:

As Texas explained at oral argument, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. …  And, although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured the Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one.

No. 22-913 (U.S. April 16, 2024).

Members of the Lipan-Apache Native American Church sued the City of San Antonio about its plans for a large city park that contains an area of particular religious significance to this church. One aspect of the case involved physical access to that area. After the City complied with the trial-court’s order on that issue, the Fifth Circuit held that part of the case was moot, and did not apply the “voluntary cessation” (i.e., “a defendant could … pick up where he left off”) exception to mootness:

[T]he City affirmed that it undertook several additional efforts “going beyond what the district court ordered.” The City conceded that removing the limb allowed it to reconfigure the construction fencing and it subsequently granted public access to the entire area. Likewise, the City granted Appellants access to conduct a religious ceremony at the Sacred Area from midnight to 4 a.m. on November 18, 2023, during hours when the Park is normally closed. Furthermore, on November 21, 2023, the City moved to dismiss its crossappeal in this action, deciding to no longer pursue the issue of access to the Sacred Area. Based on these subsequent developments, “[i]t is therefore clear that [the City officials] harbor no animosity toward [Appellants].” Appellants now have “no reasonable expectation that the wrong challenged by [them] would be repeated.” Thus, the voluntary cessation exception does not apply.

Perez v. City of San Antonio, No. 23-50746 (April 11, 2024) (citations omitted).

After a Fifth Circuit panel granted mandamus relief about a transfer of a case involving the CFPB to the District of Columbia, the district court there entered this Minute Order on April 10:

This case was received from the U.S. District Court in the Northern District of Texas on March 29, 2024. On April 8, 2024, the Court received a copy of the Order Reopening Case and Providing Notice to the United States District Court of the District of Columbia … issued by the Texas district court in accordance with In re Fort Worth Chamber of Commerce, No. 24-10266 (5th Cir. Apr. 5, 2024) (attached to Notice and Order). The Fifth Circuit found that the district court lacked jurisdiction to transfer the case while an appeal was pending before the Court of Appeals, and it ordered the district court to “reopen the case and to give notice to D.D.C. that its transfer was without jurisdiction and should be disregarded.” While the Court is not inclined to “disregard” a case on its docket, and it has considerable discretion to supervise its own cases, a review of the Notice and Order, as well as the docket in the Northern District of Texas, reflects that the case is now proceeding there under the supervision of another district court. Therefore, the case will be terminated on this court’s docket at this time without prejudice. This order should not be read to express any view on the transfer question, which has not been presented to this Court to decide. The Clerk of Court is directed to terminate this case on the docket of the District Court for the District of Columbia.

Meanwhile, back in New Orleans, the Fifth Circuit has asked for supplemental briefing about “whether or not an ownership interest in a nonparty large credit card issuer would be substantially affected by the outcome of this litigation,” for purposes of evaluation potential judicial recusal. On May 3, the panel released a revised opinion.

I hope you find this cross-post from 600 Commerce to be informative!

The most recent Advocate (the quarterly publication of the State Bar of Texas Litigation Section) has several articles about how the new Fifteenth Court of Appeals will get off the ground. I have a short piece on where the new court is likely to look for precedent, since it will have none of its own to start. I hope you find it useful in thinking about this important new appellate forum.

In D&T Partners LLC v. Baymark Partners Mgmnt., LLC, “[a] group of individuals allegedly sought to steal the assets and trade secrets of an e-commerce company,” and “did so with shell entities, corrupt lending practices, and a fraudulent bankruptcy.” The plainitffs’ complaint did not state a RICO claim, however:

“While the complaint alleges coordinated theft, the alleged victims are limited in number, and the scope and nature of the scheme was finite and focused on a singular objective. … [T]his does not constitute a “pattern” of racketeering conduct sufficient to state a RICO claim ….”

No. 22-11148 (Apr. 4, 2024).

In a muscular display of appellate review, in Career Colleges & Schools of Texas v. U.S. Dep’t of Educ., the Fifth Circuit:

• Disagreed with the  district court’s conclusion that an association of career schools lacked standing due to a lack of immediate irreparable injury, identifying three types of injury suffered as a result of new DOE regulations about certain defenses to student-loan repayment;
• Concluded that, as a matter of law, the association had satisfied the requirements for a preliminary injunction;
• Gave the resulting injunction nationwide effect; and
• Ordered: “The stay pending appeal remains in effect until the district court enters the preliminary injunction.”

No. 23-50491 (April 4, 2024).

Long-running litigation about control of the Jackson airport led to the en banc court holding on April 2 that the appeal was moot. A breakdown of the viewpoints appears below:

Several disputes about inter-circuit venue transfers are ongoing (I was recently interviewed by Bloomberg about this phenomenon):

• SpaceX. In a dispute between SpaceX and the NLRB, the Fifth Circuit is considering whether to review a transfer order en banc. The NLRB recently filed its response to an unusual order from the panel asking the NLRB to explain several actions taken earlier in the proceedings. The gist of the NLRB’s response was:

Only one court may have jurisdiction at a time. The transferee court was notobliged to follow the February 26 order, and zealous advocacy required the NLRB to present its legal arguments as to why it should not be followed to the Central District of California. Thus, the NLRB urged that court, not to ignore this Court’sorder, but to acknowledge it and respectfully decline retransfer. 

• CFTC. In a dispute involving the Commodities Futures Trading Commission, the District of the District of Columbia has received the district court’s request to return the case, along with briefing and argument from the parties about the appropriate next step, and as of April 6 continued to have that request under consideration.
• CFPB. In a dispute involving the CFPB and a new rule about credit-card late fees, a 2-1 panel decision granted mandamus relief on April 5–after a case had been transferred to the District of the District of Columbia, concluding:

Because the Chamber had a short window of time to either (1) comply with the Final Rule, or (2) seek a preliminary injunction, the district court’s inaction amounted to an effective denial of the Chamber’s motion for a preliminary injunction. That effective denial is properly before us on appeal. The district court lacked jurisdiction to transfer the case after this appeal was docketed because doing so would alter its status. … The district court is ORDERED to reopen the case and to give notice to D.D.C. that its transfer was without jurisdiction and should be disregarded.

• CFPB dissent. The dissent in the CFPB case concluded: “For the foregoing reasons, I believe that the new proposition of law created by the majority is incompatible with district court discretion over docket management and prudent policing of forum shopping. Finally, I am confident the District Court for the District of Columbia will give the suggestion that it should disregard a case docketed by it its closest attention.”
• HHS. The Court has expedited argument (to May 1) of National Infusion Center v. Becerra , a challenge to the dismissal of a case about 2022 drug-reimbursement regulations on venue grounds (after the dismissal of a party for jurisdictional reasons).

Several matters involving inter-circuit venue transfers are ongoing:

• In a dispute between SpaceX and the NLRB, the Fifth Circuit is considering whether to review a transfer order en banc. The panel recently issued this unusual order asking the NLRB’s counsel to explain several actions taken earlier in the proceedings.
• In a dispute involving the CFTC, the District of the District of Columbia has received the district court’s request to return the case, and is receiving briefing and argument from the parties about the appropriate next step.
• In another dispute involving the CFPB, the Fifth Circuit has administratively stayed a transfer order and referred the matter to the next available argument panel.

A recent policy statement from the Judicial Conference of the United States recommended changes to judge-assignment practices in district courts. The statement has drawn considerable attention both pro and con; this Volokh Conspiracy post is a good summary of the “con” side. A recent letter from the Chief Judge of the Northern District of Texas says that its judges have declined to materially change that district’s judge-assignment policies.