My thoughtful friend Arturo Ayala recently wrote this informative short article as to when partial supersedeas bonds may be allowed.

The once-obscure Court of International Trade – once an Article I tribunal, but “promoted” to Article III status in 1956 – took issue with the legal basis for many of the Trump Administration’s tariffs.

Specifically, in V.O.S. Selections, Inc. v. United States, that court held that the International Emergency Economic Powers Act’s authorization for the President to “regulate . . . importation” does not confer unbounded tariff authority: “[T]his court reads ‘regulate . . . importation’ to provide more limited authority so as to avoid constitutional infirmities and maintain the ‘separate and distinct exercise of the different powers of government’ that is ‘essential to the preservation of liberty.'”

The opinion went on to distinguish between the President’s emergency powers and more narrowly tailored statutory authorities, such as those found in the Trade Act of 1974, which specifically limit the President’s ability to impose tariffs in response to trade deficits or other economic concerns. Nos. 25-00066 & 25-00077, May 28, 2025

In Deep South Center of Environmental Justice v. EPA, the Fifth Circuit addressed the requirements for organizational standing and the limits of remote injury, implementing the Supreme Court’s recent decision in FDA v. Alliance for Hippocratic Medicine as follows:

• An organization cannot establish standing just by diverting resources to oppose a government action or by incurring costs for advocacy in response to that action: “An organizational plaintiff ‘cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.’”
• Alliance for Hippocratic Medicine requires a “concrete and demonstrable injury to the organization’s activities,” not just a “setback to [its] abstract social interests.” Thus, direct interference with an organization’s core business activities (as in other precedent) is distinct from voluntary changes in programming or advocacy, which are not enough.
• The panel majority described the petitioners’ claims of future economic, health, property, aesthetic, and recreational injuries as resting on a multi-step chain: a party would have to apply for a permit, the state would have to issue it, a well would have to be constructed and operated, and then some mishap would have to occur that would directly harm the petitioners or their members. And even where some steps had already occurred (such as the filing of permit applications), the other ones—such as the likelihood of a well malfunctioning at a time and place and injuring a specific member—remained speculative.

A dissent concurred in the judgment but questioned the extent of the majority’s holdings about the impact of Alliance for Hippocratic Medicine. No. 24-60084, May 21, 2025.

In Little v. Llano County, , the en banc Fifth Circuit held that decisions by public libraries, about what books to include or remove from their collections, are government speech that is not subject to a First Amendment challenge. (Here is a list of the books at issue, with links to where they can be purchased.)

The majority reasoned that while the First Amendment protects individuals’ rights to receive information from other private parties, it does not create a right to demand that the government provide access to specific information or books through its libraries.

A dissent argued that the First Amendment protects the public’s right to access information and ideas in public libraries, and warned about government officials removing books from libraries because of dislike for their content: ”By eliminating the public’s right to challenge government censorship of public library books, our court’s holding becomes a Trojan horse for the government speech doctrine that fails to command a majority in its own name.” No. 23-50224 (May 23, 2025).

Speech First, Inc. v. McCall involved a First Amendment challenge to a dodgy “haratssment policy” at Texas State University, which the university argued had become moot. The Court held that the lawsuit was not moot, applying the Circuit’s three-factor test for this situation.

First, the university had not issued a binding statement of future intent not to reinstate the challenged policy, and there was “no evidence” that the university’s assurances would control future actions “during or after the tenure of the University’s present leadership.”

Second, the timing of the policy change was suspicious, as the university amended its policy only after the lawsuit was filed and in direct response to judicial pressure, rather than as a voluntary act.

Third, the university continued to defend the legality of its original policy throughout the litigation, further undermining any claim that the challenged conduct would not recur.

The court emphasized that “mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways.” No. 23-50633, May 14, 2025.

The en banc Fifth Circuit overruled an obsolete precedent about removal, as follows:

In this case, a Texas law firm sued one of its former attorneys, Edward Festeryga, in state court, alleging that he took firm files and clients to his new practice. Seventeen days later—well within the 30-day statutory removal window—Festeryga removed the case to federal court. The district court, however, remanded the case, concluding that
Festeryga had waived his removal right by filing a motion to dismiss in state court. Bound by [In re Weaver]—and acknowledging its “erroneous premises”—a panel of this court “reluctantly” dismissed Festeryga’s appeal for lack of appellate jurisdiction. … Today, we do what only this court sitting en banc can: we correct course and “unweave Weaver.”

Abraham Watkins v. Festeryga, No. 23-20337 (May 16, 2025).

The Fifth Circuit’s “moment of threat” doctrine in police-force cases is no more after this morning’s reversal in Barnes v. Felix.

Ethridge v. Samsung presents, yet again, a close case about personal jurisdiction over an out-of-state manufacturer. The claim arose from an exploding lithium-battery; two sets of contacts were relevant:

1. “Since January 2019, Samsung has shipped 18650 batteries to Black & Decker’s Texas manufacturing facility to be incorporated into sealed power tool battery packs. For a number of years (at all times relevant to this litigation), Samsung has also shipped 18650 batteries to HP and Dell to be used as samples or for laptop repairs in their Texas service centers.”
2. “Samsung sells 18650 batteries to ‘sophisticated and qualified’ businesses, which typically use them in battery packs. Some of these battery packs end up in products that are sold to Texas consumers. Samsung contends, however, that it has no control over what happens to its 18650 batteries after it sells them to its business customers in Texas.”

The panel majority concluded that Texas jurisdiction was appropriate in light of the Supreme Court’s most recent treatment of a similar issue in its 2021 Ford Motor opinion. A dissent saw matters differently:

The unilateral choices of an individual-consumer plaintiff have not been determinative of specific jurisdiction in modern history. Instead, an unbroken string of Supreme Court cases, with a recent, narrow exception in Ford, focus on the purposeful actions of the defendant in a forum state. Here, the defendant’s forum-state activities are wholly unrelated to the plaintiff’s purchase and use of the relevant product. Therefore, because Ethridge purchased the battery for his vape pen through a channel that Samsung never authorized, the fact of his injury should not make Texas a valid forum consistent with Due Process.

No. 23-40094 (May 14, 2025). 

I recently moderated a panel at the Fifth Circuit Judicial Conference about AI and the law, and was honored to meet two energetic thinkers in that important and rapidly developing area. You can learn more about them here:

• Judge Scott Schlegel, a Louisiana appellate, who publishes a lively and thoughtful blog about AI issues. I highly recommend keeping an eye on it.
• Professor Yonathan Arbel, of the University of Alabama Law School, who recently published a thought-provoking article in the NYU Law Review about how judges can productively use large language models when interpreting contracts.

I hope you enjoy their work and follow their thought leadership on the world-changing force of generative AI technology.

A breach-of-contract suit against a governmental entity led to these holdings about how the district court handled immunity defenses:

The district court thus made two errors. First, the district court held that Texas’s state-law immunity from suit deprived it of subject matter jurisdiction. But state-created immunities do not and cannot limit the jurisdiction of federal courts. If these state-law immunities apply at all in federal court under the Erie doctrine, they must be treated as non-jurisdictional, merits-based defenses. 

The second error flows directly from the first. The district court dismissed for lack of jurisdiction—without addressing the two other bases for dismissal that really do implicate subject matter jurisdiction. State sovereign immunity and the absence of complete diversity—unlike state-law immunities—are jurisdictional defects. And either of the former two problems would require a without-prejudice jurisdictional dismissal. Such jurisdictional problems must be addressed first, before the district court considers any merits-based defenses.

Anthology, Inc. v. Tarrant County College Dist., No. 24-10630-CV (May 2, 2025).

Now that a Texas trial-court opinion has issued about deporting suspected Venezuelan gang members, the issue appears headed to the Fifth Circuit.