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.)