In United States ex rel. Montcrief v. Peripheral Vascular Assocs., P.A.., the Fifth Circuit addressed two sets of claims under the False Claims Act: the “Testing Only” claims and the “Double Billing” claims.

The court affirmed the district court’s grant of partial summary judgment on the Testing Only claims, finding them actionable because the claims were factually false. Specifically, the Court noted that Peripheral Vascular Associates (PVA) billed Medicare for vascular ultrasounds using “global” CPT–4 codes, before the professional component of the ultrasounds was completed.  This meant that the services billed were not fully rendered at the time of billing, making the related claims “factually false.”

In contrast, the Court reversed summary judgment on the Double Billing, which involved patients who received visits for other purposes as well as vascular ultrasounds, with the interpretive reports for the ultrasounds sometimes finalized after billing.  The Court concluded that the CPT–4 Manual was ambiguous regarding whether separate reports were required in this situation. No. 24-50176, Mar. 28, 2025.

Venue disputes—specifically, between courts in Washington DC and those in the Fifth Circuit—are again on the horizon as a result of challenges to aggressive use of immigration-related laws by the Trump Administration.

In yesterday’s case of J.G.G. v. Trump, the D.C. Circuit denied an emergency motion to stay TROs against the use of the Alien Enemies Act to detain and remove Venezuelan citizens. No. 25-5067 (D.C. Cir. March 26, 2026). While the operative judgment of the panel comprises only a one-page order, each of the three judges wrote an opinion (two concurrences and one dissent), as follows:

• Judge Karen Henderson noted that the Act grants the President near-blanket authority to detain and deport noncitizens affiliated with a belligerent state during times of war or invasion.  However, she underscored the necessity of judicial oversight, stating, “The Alien Enemies Act sets forth ‘conditions upon which it might be invoked’ but is silent as to ‘how long the power should last when properly invoked.'”
• Judge Patricia Millett argued that the government’s position, which would allow for the summary removal of individuals without any opportunity for judicial review, was fundamentally at odds with the Constitution’s guarantee of due process.
• Judge Justin Walker’s dissent contended that the plaintiffs’ claims should have been brought in the Southern District of Texas, where they were detained, rather than in the District of Columbia.  He also argued that the district court’s orders interfered with sensitive national security operations.

The Supreme Court today reversed the Fifth Circuit’s invalidation of an ATF regulation about “ghost guns,” noting that the relevant statute applied to “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”

That grant of authority is readily distinguished from last Term’s opinion in Cargill v. Garland, which involved a statute focused on a specific type of firing mechanism.

In JSW Steel (USA) Inc. v. Nucor Corp., the Fifth Circuit affirmed the dismissal of JSW Steel’s antitrust claims against Nucor, U.S. Steel, and AK Steel.

The Court held that JSW failed to plausibly allege a conspiracy in violation of the Sherman Act.  The allegations of parallel conduct by the defendants, such as their simultaneous objections to JSW’s tariff exclusion requests and their similar creditworthiness requirements, did not sufficiently suggest a preceding agreement.  The Court emphasized that “parallel conduct that could just as well be independent action” does not meet the threshold for establishing a conspiracy under the Sherman Act.

Additionally, the Court found that much of the conduct alleged by JSW was protected under the Noerr-Pennington doctrine, which shields parties from antitrust liability when petitioning the government for favorable action.  That activity included the defendants’ certifications to the Bureau of Industry and Security (BIS) and their coordination in discussing changes to the steel Section 232 exclusion process. No. 22-20149, Mar. 17, 2025

In a famous dissent from a death-penalty case, Justice Harry Blackmun wrote: “From this day forward, I no longer shall tinker with the machinery of death ….”

Others have continued such tinkering, however, leading to the macabre question presented in Hoffman v. Westcott — whether the Eighth Amendment forbids execution by “nitrogen hypoxia” sa opposed to a firing squad.

The panel majority held that this question was for the state to resolve; the dissent, for the district judge based on the preliminary-injunction record. No. 25-70006-CV (March 14, 2025).

The recent vote against en banc review in Repub. Nat’l Comm. v. Wetzel, a case about the acceptable time frame for counting mail-in ballots, produced this configuration of votes and opinions:

The en banc Fifth Circuit recently denied review of Repub. Nat’l Comm. v. Wetzel – a panel opinon in a larger tradition of conservative distaste for mail. A dissent by Judge Higginson favorably noted commentary on the panel opinion, which draws an interesting distinction among (1) the parties’ briefs; (2) amicus submissions; and (3) public commentary, whether by academics or practioners (or earnest bloggers):

We benefit from lawyer insight and criticism. Though we receive amicus curiae briefs less frequently than the Supreme Court, they provide primary opportunity for non-party lawyers to give insight, albeit with stringent requirements. It is rarer that topflight lawyers, like Unikowsky, have time to offer scholarly critique of a case neither he, nor Bernstein, was retained to handle. Chief Justice Roberts recently reminded that “public engagement with the work of the courts results in a better-informed polity and a more robust democracy.” It is for this reason that the judiciary depends on lawyers, not just as party advocates, but also for all forms of engagement with courts. “[I]nformed criticism” of court opinions from lawyers unaffiliated with the parties is in that vital tradition.

I explored the interplay between non-litigation sources of information and the party-presentation principle in this Cornell Law Review article last year.

In Golden Bear Ins. Co. v. 34th S&S, LLC, the Fifth Circuit rejected an insurer’s declaratory-judgment action about coverage.

The Court emphasized that the Declaratory Judgment Act is intended to provide “early adjudication” of legal rights before disputes ripen into violations of law or breaches of contractual duty. In this case, the alleged misconduct by Golden Bear—negligently refusing to settle a claim—had already occurred, as evidenced by the jury’s verdict exceeding the policy limit.

Therefore, Golden Bear’s could not seek a declaratory judgment  to argue retroactively that it never had a duty to settle was inappropriate. More broadly, the Court observed:  “Allowing the complaint to proceed here would ‘enable a prospective negligence action defendant to obtain a declaration of non-liability,’ which ‘is not one of the purposes of the declaratory judgment act[].'” No. 24-20332, Mar. 14, 2025.

Despite an instruction not to consider interest in determining damages, and “[a]lthough jurors are presumed to follow jury instructions, that presumption does not prevent the court from observing and acting on an obvious failure to have done so.” Therefore, in Ramsey v. Sheet Pile LLC, when it was apparent that “the jury awarded damages on the loan based on the amount owed as of the date of the verdict, not as of the date [Plaintiff] filed suit,” the proper course was to have the district court offer an appropriate remittitur to restore order to the verdict while also carrying out its obligation to calculate post-judgment interest as an issue of law. No. 23-50911 (March 3, 2025).

Ramsey v. Sheet Pile LLC presents an interesting issue about the “prior material breach” doctrine under Texas law. In that case, the issue went nowhere because it had not been raised below and did not rise to the level of plain error. The specific question, though, is the extent to which “there is a bright-line legal rule that suing under a contract prohibits a plaintiff from relying on a defendant’s prior material breach to excuse his own breach” – a question that can become complicated if a contract dispute involves both monetary issues and nondisclosure-type obligations. No. 23-50911 (March 3, 2025).

Fans of the “Emergency!” TV show will recall Rampart General Hospital (right). In Rampart Resources v. Rampart/Wurth Holding, the Fifth Circuit evaluated the likelihood of confusion between two businesses that both used the name “Rampart”:

1. Type of Mark. The strength of Rampart Resources’ arbitrary trademark was balanced by widespread third-part y usage of the key portion of the mark. This digit weighed in favor of Rampart Resources, but not heavily.
2. Similarity Between the Marks. The similarity between the marks was not substantial. The only common element was the word “Rampart,” and the overall appearance, sound, and meaning of the marks were different. This digit weighed in favor of Rampart/Wurth.
3. Similarity of the Services. There was only a minor overlap in the services provided by the parties—both operated broadly in the real estate industry, but their specific services did not substantially overlap. This digit weighed somewhat in favor of Rampart Resources.
4. Identity of the Retail Outlets and Purchasers. The court found that the retail outlets and purchasers were not sufficiently similar to cause confusion. This digit weighed in favor of Rampart/Wurth.
5. Identity of the Advertising Media Used. Both parties used word-of-mouth and online advertising but the evidence was insufficient to make this digit probative, either way.
6. Defendant’s Intent. The court found no evidence of bad intent on the part of Rampart/Wurth.  This digit was neutral.
7. Actual Confusion. The court acknowledged some evidence of actual confusion, such as misdirected phone calls and a FedEx driver’s confusion. However, it found that this evidence was not particularly weighty and did not show that any confusion swayed consumer purchases.  This digit weighed slightly in favor of Rampart Resources.
8. Degree of Care Exercised by Potential Purchasers. The court found that the sophistication of the clients and the care they exercised in making purchasing decisions weighed against a likelihood of confusion. This digit weighed in favor of Rampart/Wurth.

Overall, the Court affirmed the district court’s decision to deny a preliminary injunction. No. 24-30111 (Feb. 24, 2025).