After much Sturm und Drang, the District of the District of Columbia returned Clarke v. CFTC to the Texas district court where that case started, reasoning:

[T]he Court will follow the weight of authority and transfer this case back to the requesting jurisdiction because the record establishes that it was transferred prematurely. The Court makes no decision on the Parties’ respective arguments on whether transfer would otherwise be appropriate. It certainly would be easy for the Court to keep this case—the Court currently has a case involving the same challenge against Defendant that is fully briefed and scheduled for argument soon. Nor does the Court quite understand how the District Court in Texas abused its discretion in making its determination. But the weight of authority instructs the Court on how such requests are routinely addressed, and the Court will follow that course of action here.

Clarke v. CFTC (citation omitted) (D.D.C. May 22, 2024).

Thryv, Inc. v. NLRB, a review of the NLRB’s handling of an unfair labor practices case, presents deft usage of a typographical device called the “dinkus”:

Thanks to the observant Cedric Bond for pointing this out!

Hager v. Brinker Texas, Inc. reminds that the business-records exception to the hearsay rule has significant limitations. The Fifth Circuit summarized an earlier case, in a similar dispute about the admissibility of the employer’s records, as holding:

“[A]n employer’s human resource managers’ reports and letters tracing steps in investigating complaints of sexual harassment against an employee leading to discharge were admissible business records; but it also recognized that such reports would be ‘inadmissible where their “primary utility is for litigation.”‘”

Based on that rule, the Court held:

[T]he Venable declaration and Exhibit B were prepared immediately after the threat of Sharnez’s litigation loomed as Brinker knew that Sharnez complained of racial discrimination and mentioned contacting her lawyer. Venable’s conclusory assertion that the declaration and Exhibit B were made in the regular course of Brinker’s business, with no further explanation about whether it was company procedure to make similar records, does not frustrate this conclusion.  Quite the opposite, Venable admitted that he had never before conducted an investigation into a guest complaint of racial discrimination, further undercutting any claim that the declaration was made in the “regular course” of business. 

No. 21-20235 (May 22, 2024).

Lest one think the law of adminstrative stays had become more settled with time, MCR Oil Tools, LLC v. U.S. Dep’t of Transp. reminds otherwise. The manufacturer of a torch used in oil drilling challenged a new safety regulation on its product. The three judges on the panel reacted in different ways:

• The majority opinion defers the motion for stay to the next available argument panel;
• A dissent emphasized the need for immediate action, given the regulation’s effect on significant outstanding orders;
• A concurrence analogized the case to a recent challenge to the Texas ban on drag shows.

No. 24-60230 (May 23, 2024).

“Double, double, toil and trouble,” chanted the three witches of Macbeth.  “Double insulated,” said the Fifth Circuit in CFSA v. CFPB, holding that the Consumer Financial Protection Bureau’s funding mechanism was so far removed from Congress’s ordinary appropriations process that it violated the Appropriation Clause of the Constitution. Parting company with the above, the Supreme Court didn’t use the word “double” in reversing the Fifth Circuit, and holding that the CFPB is appropriately funded, considering history and practicality. CFPB v. CFSA, No. 22-448 (U.S. March 16, 2024).

Martin v. LCMC Health Holdings, Inc. presents a creative use of the “federal officer” removal statute. A hospital argued that because its patient-portal systems were part of a federal information program created by Congress, it “acts under the direction of a federal officer when embedding tracking pixels onto its website where patients may access their medical records.” While creative, the argument didn’t work: “LCMC’s relationship with the federal government is too attenuated to show any delegation of legal authority, and consequently, LCMC cannot show that it acted pursuant to a federal officer’s directions for purposes of federal officer removal. ” No. 23-30522 (May 13, 2024).

In a counterpoint to some treatments of standing in the mifepristone litigation, the Fifth Circuit rejected Texas’s standing to challenge an SEC disclosure requirement, reasoning:

As the States conceded during oral argument, there is no guarantee that regulated parties will always pass costs on to their consumers. Some costs may be too small to warrant a cost pass-through. So any cost pass-through must be established through evidence. We look to the evidence in the record to determine whether the facts of a specific case support “likely . . . pecuniary harm” to a suing party.  Evidence couched in hypothetical language cannot support such an injury. Here, the record provides only speculation about the possibility of increased costs to investors as a result of new regulatory burdens on the funds.

State of Texas v. SEC, No. 23-60079 (May 10, 2024) (citations omitted, paragraph breaks removed, emphasis added).

The civil-criminal distinction was outcome determinative of the issue presented in Charitable DAF Fund, L.P. v. Highland Capital Management, L.P.:

“Highland incurred virtually all its contempt-related expenses because the bankruptcy court permitted extensive discovery and conducted a marathon evidentiary hearing to unearth Dondero’s role in filing the Motion [for Leave]. But Dondero’s intentions were relevant only to criminal contempt—a sanction the bankruptcy court was powerless to impose. Dondero’s intentions—and virtually all of the discovery and the bankruptcy court’s mini-trial—were irrelevant to civil contempt. The only question in civil contempt is whether and to what extent Highland was damaged by DAF’s choice to file the  Motion in the wrong forum. Neither Highland nor the bankruptcy court was permitted to seize on DAF’s error and leverage it into a punitive proceeding.”

No. 22-11036 (April 4, 2024) (citations omitted).

In a dispute about insurance coverage for a freak accident at a drag-racing event, the Fifth Circuit rejected the argument that the policy was ambiguous, reasoning:

“[W]e must construe every part of the CGL Policy—the CGL Declaration, the CGL Form, and the CGL Endorsements simultaneously. So construed, the CGL Policy is not ambiguous.

Begin by considering the relationship between the CGL Form and the CGL Endorsements. Generalia specialibus non derogant. Given that the CGL Form provides general statements regarding coverage, a CGL Endorsement’s more specific statement regarding the same will control where the two conflict. … 

As the CDE Endorsement and MV Endorsement illustrate, the CGL Endorsements modify express subsets of provisions in the CGL Form. They do not, however, expressly purport to modify the CGL Declaration, other provisions in the CGL Form, or other CGL Endorsements. So, relative to the CGL Form, each of the CGL Endorsements addresses a narrower set of provisions in greater detail.

Kinsale Ins. Co. v. Flyin Diesel Performance & Offroad, LLC, No. 23-50336 (April 26, 2024).

In a return to the Fifth Circuit after an earlier panel opinion affirmed an antisuit injunction, the Court applied the Lauritzen-Rhoditis factors to conclude that Liberian law, rather than American, governed a boat crewmember’s claim about catching malaria aboard the ship:

Considered in the context of this case, involving traditional maritime shipping activities and assertions of wrongdoing yielding a seaman’s “shipboard injury,” none of the Lauritzen-Rhoditis factors that the Supreme Court has deemed significant to the choice of-law determination in traditional maritime shipping cases involve the United States. Specifically, the law of the flag factor, which generally is “of cardinal importance” in the traditional maritime shipping context, points to Liberia.

Ganpat v. Eastern Pacific Shipping PTE, No. 22-30758 (May 1, 2024).

In Sanders v. The Boeing Co., No. 22-20317 (May 2, 2024), the Fifth Circuit summarized the two key holdings that resulted from certification of a question about the Texas limitations-savings statute (reproduced in full below):

1. “[Tex. Civ. Prac. & Rem. Code] Section 16.064(a)(1) applies whenever the previous court dismissed an action for lack of jurisdiction. Thus is so even when the court ‘erred and actually had jurisdiction or could have had jurisdiction had the claims been pleaded differently.'” (citation omitted)
2. “[A] dismissal or other disposition does not ‘become final’ for purposes of Section 16.064(a)(2) until the parties have exhausted their appellate remedies and the court’s power to alter the dismissal has ended.'” (citation omitted, cleaned up).

If you have ever wondered “can the party-presentation principle help distinguish holding from dicta?’ then you will enjoy my new article in the Cornell Law Review Online, which hopefully offers some new perspective on some longstanding concepts.

Phillips v. ERCOT addresses a dispute between ERCOT and the liquidating trust of Entrust Energy, a supplier of electriciity to end users, who went into bankruptcy after receiving a large bill in the wake of Winter Storm Uri. In resolving this dispute, the Fifth Circuit held:

• No immunity for ERCOT. The six relevant factors were “an even split,” but because ‘our court has indicated repeatedly that factor 2 [the source of the entity’s funding] is the most important, ERCOT is not an arm of Texas and not entitled to immunity in federal court.”
• Abstention. Burford abstention was required because, inter alia: “federal adjudication of the [programs at issue] risks dramatic intrusion into Texas’s specialized system of electric utility regulation and would disrupt Texas’s efforts to establish a coherent and uniform policy for electric utilities. Under the specific circumstances of this case, the fact that the takings claim arises under federal law and that Texas does not provide any sort of specialized system for review does not support hearing the claim.” (footnote omittted).

No. 22-20603 (April 29, 2024).

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.

Applying the international convention about arbitration, the Fifth Circuit found an abuse of discretion in not compelling arbitration because of equitable estoppel, reasoning:

While Bufkin was certainly free to name and then dismiss the foreign insurers, the district court was not free to disregard them in considering the domestic insurers’ motion to compel arbitration. Yet in focusing on Bufkin’s dismissal of the foreign insurers, the district court neglected to consider the foreign insurers’ part in the seamless coverage agreement struck by the parties, and Bufkin’s interactions with the insurers. Honing in, that coverage arrangement included the arbitration clause that afforded the insurers–foreign and domestic—“predictability in resolving disputes dealing with the substantial risks presented by a surplus lines insurance policy.” …  The upshot is that indulging Bufkin’s pleading-and-then-dismissing gamesmanship by denying arbitration turns on its head the axiom that “[t]he linchpin for equitable estoppel is equity—fairness.”

Bufkin Enterprises, LLC v. Indian Harbor Ins. Co., No. 23-30171 (March 4, 2024) (emphasis added).

After an earler (unexplained) grant of an administrative stay touched off weeks of fast-paced appellate litigation about Texas’s “SB4” immigration law, a majority of the Fifth Circuit’s merits panel denied any further stay of the trial court’s injunction against enforcement of that law. USA v. Texas, No. 24-50149 (March 26, 2024). Argument is scheduled next week; barring Supreme Court intervention, merits opinions similar to these are likely.

The Fifth Circuit made/ an interesting observation about the comparative weight of Erie precedent in SXSW LLC v. Fed. Ins. Co.:

Federal cites two federal district courts to support its broader interpretation. …  But these authorities are worth relatively little in this case. Our focus is on Texas law as interpreted by the Texas state courts.

No. 22-50933 (March 21, 2024) (unpublished).

This morning’s Supreme Court arguments in the mifepristone cases (which will be available here when ready) lead to a couple of observations about legal issues of the day:

1. Standing. As the Washington Post effectively summarized: “A majority of justices from across the ideological spectrum expressed skepticism that the antiabortion doctors challenging the government’s loosening of regulations have sufficient legal grounds — or standing — to bring the lawsuit.” (Last year, I wrote about the “conservative” approach to standing in high-profile constitutional cases in a Slate article, and the application of basic standing principles in the mifepristone cases in this Dallas Morning News editorial.)
2. Comstock. Justice Holmes famously observed: “The common law is not a brooding omnipresence in the sky.” But the Comstock Act is, and Congress should do something about the law before its 1870s-era moralism is inflicted on modern society. Mark Stern’s X feed on the mifepristone arguments summarizes some of the present state of play.

A propane grill exploded; the injured plaintiff won a judgment against the supplier of the propane tank, and the Fifth Circuit reversed in Johnston v. Ferrellgas, Inc.:

[T]he circumstantial evidence on which the Johnstons rely does not cure the want of proof that the tank was defective when it left Ferrellgas’s possession. This is not a res ipsa case. Indeed, the Johnstons did not advance that theory of liability before the district court or before us. In sum, the Plaintiff’s expert admitted that he could not say the tank was defective at the time it left Ferrellgas, making his prior comments about the tank’s condition at that time pure speculation; the tank functioned properly before Johnston used it; the tank and seal are not sealed containers; and both parties agree Ferrellgas successfully refilled the tank with gas under highpressure months before the accident. There is no reasonable basis on which the jury could find the Johnstons met their burden.

No. 23-10019 (March 21, 2024). A dissent saw matters differently.

In the 1950s, Big Tobacco advertised the safety of “Kent with the Micronite Filter,” which was unfortunately made with an exceptionally dangerous form of asbestos. After decades of advertising bans and mandatory disclosures, the battle over cigarette ads continues, leading most recently to R.J. Reynolds Tobacco Co. v. FDA – a First Amendment challenge to new, more graphic disclosures about the potential harms of smoking.

The Fifth Circuit rejected the challenge (reversing a contrary district-court opinion) and remanded for consideration of claims involving the Administrative Procedure Act. As to the First Amendment issues, the Court summarized:

When determining whether Zauderer applies, (1) images can be factual; (2) ideological or emotion-inducing statements are not per se controversial or non-factual; (3) “uncontroversial” means not subject to good-faith dispute about the accuracy of the factual statement; and (4) legitimate state interests other than the prevention of consumer deception are cognizable under Zauderer. For the reasons detailed above, the district court erred by finding Zauderer inapplicable to the FDA’s newest Warnings. Applying Zauderer, the Warnings survive constitutional muster against the First Amendment challenge.

No. 23-40076 (March 21, 2024).

In Wilmington Savings Fund Society, FSB v. Myers, the appellant argued that its notice of appeal was timely, when filed within 30 days of a second judgment, and when the first judgment “was mislabeled because even though it purported to dispose of all claims and parties in the case, the title of the order did not signal that it was a final judgment.”

The Fifth Circuit agreed. Noting that “[o]rdinarily, such minor changes to an order do not ‘disturb or revise legal rights and obligations’ of the parties” (cleaned up), it concluded that “there was in this case a clear discrepancy between the label and the body of the district court’s order” that was sufficient to treat it as a substantive revision for purposes of calculating the appeal deadline. No. 24-20018 (March 18, 2024) (applying FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211 (1952)).

(The graphic was provided by DALL-E, and explained by it as follows: “The images above illustrate the concept of a substantive change versus a change solely of form, through the comparison of a caterpillar’s transformation into a butterfly (substantive change) and a chameleon’s color change (change of form).”

All eyes will be on New Orleans this morning, for the (videoconferenced) arguments in United States v. Texas, where last night’s order suggests a 2-1 decision will be forthcoming that continues to bar enforcement of Texas’s SB4 during the pendency of its appeal. The Supreme Court will likely be asked about the resulting order, whatever it may be.

Earlier this month, the Fifth Circuit granted mandamus relief, including the issuance of a writ of mandamus to the Western District of Texas, requiring that the district court request the return of a case from the District of the District of Columbia. That request was made on March 7. As of March 19, that court had not ruled on the request, and the CFTC continues to urge that the court delay action until it has received further briefing on the venue issue.

In Calogero v. Shows, Cali & Walsh, LLP, (discussed earlier this week for stylistic reasons), a panel majority found that two recipients of certain Hurricane Katrina relief stated a viable Fair Debt Collection Act claim when:

• The longest possible limitations period (10 years) had run by the time the demand letters requested payment; and
• The demand letters threatened a claim for attorneys fees, when the relevant documents only created a specific right to potential fee recovery that did not include the alleged debt at issue.

The third judge, without opinion, concurred in the result only. No. 22-30487 (March 15, 2024).

Michael Cloud, a former NFL running back, sued the NFL’s retirement fund for additional disability benefits. The Fifth Circuit reversed a trial-court ruling in his favor, noting the one-sided nature of the plan’s operations, but concluding:

Cloud’s claim fails because he did not and cannot show any changed circumstances entitling him to reclassification to the highest tier of benefits. He could have appealed the 2014 denial of reclassification to Active Football status—but he did not do so. Instead, Cloud filed another claim for reclassification in 2016, which subjected him to a changed-circumstances requirement that he cannot meet—and did not try to meet. He therefore forfeited the issue at the administrative level and at any rate has not pointed to any clear and convincing evidence supporting his claim.

The district court’s findings about the NFL Plan’s disregard of players’ rights under ERISA and the Plan are disturbing. Again, this is a Plan jointly managed by the league and the players’ union. And we commend the trial court judge for her diligent work chronicling a lopsided system aggressively stacked against disabled players. But we also must enforce the Plan’s terms in accordance with the law.

Cloud v. Bell-Rozelle NFL Player Retirement Plan, No. 22-10710 (revised March 17, 2024).

You can tell your argument isn’t working when the Fifth Circuit summarizes it as follows:

“SCW’s last remaining counterargument is that it should be able to pick and choose different clauses from the LSAA and the Grant Agreement and then mush them together to demand money from debtors.”

and when the Court begins its opinion:

“Widowed octogenarians Iris Calogero and Margie Nell Randolph received dunning letters from a Louisiana law firm … .”

Calogero v. Shows, Cali & Walsh, LLP,  No. 22-30487 (March 15, 2024). More substantive review to follow in the week ahead!

The Judicial Conference has voted to strenghen its policy about random case assignment, as set forth here.

Deanda v. Becerra presents a conflict between Title X (a federal law about the availability of contraception), and a Texas parental-consent statute. The Fifth Circuit found no conflict, and thus no preemption. On the threshold question of standing, the Court rejected the argument that any parent could sue about this issue, observing, inter alia: “This case does not concern all ‘parents or potential parents.’ It concerns only a parent with particular religious beliefs about raising his children.” No. 23-10159 (March 12, 2024).

The Fifth Court ordered a rare reversal for a new trial because of improper closing argument in Clapper v. American Realty Investors. The Court summarized the improper statements as “employ[ing] nearly every type of improper argument identified by our court, including highly improper and personal attacks against opposing counsel, remarks about Clapper’s wealth, a discussion of matters not in the record, insinuations that Clapper had lower moral standards because he was from Michigan, and suggestions of Clapper’s bad motives through counsels’ opinion.”

The Court concluded: “We remind all practitioners in our court that zealous advocacy must not be obtained at the expense of incivility. As Judge Reavley aptly explained, ‘Although earnest, forceful, and devoted representation is both zealous and proper, Rambo and kamikaze lawyers lead themselves and their clients to zealous extinction.'” No. 21-10805 (March 8, 2024).

Notably, footnote two dismisses several arguments about preservation, concluding that “[t]he serious nature of the argument in this trial … indicates that substantial justice requires a new trial ….”

In the ongoing proceedings about the transfer of venue in a dispute between SpaceX and the NLRB, a Fifth Circuit judge has held the mandate – a step often seen in difficult cases where en banc review is possible. Interestingly, in Texas state practice, a mandate does not issue in a mandamus proceeding, because a mandamus petition is an original proceeding in the court of appeals and there is no jurisdiction to return to a trial court.

I apologize for the peculiar look of many of the site’s posts. A WordPress “plug in” has malfunctioned and until it is replaced, the site’s graphics will just look a little funny.

Last week, the Central District of California returned a case to Texas district court, after the Fifth Circuit pointed out that it had issued a stay order (in a mandamus proceeding brought to challenge the venue transfer) before the California court had docketed the transferred matter.

Then, after the return of the case to Texas, the Court denied mandamus relief. The majority did not write an opinion. A dissent would have granted the writ. In re SpaceX, No. 24-40103 (March 5, 2024). It remains to be seen what court will act next.

In Cheapside Minerals, Ltd. v. Devon Energy Prod Co., L.P., the Fifth Circuit concluded that CAFA’s “local controversy” exception did not apply, and thus reversed a remand to state court in an oil-and-gas royalties dispute:

[T]he “principal injury” each Plaintiff sustained is obvious because there was only one type of injury: a financial harm resulting from Devon’s alleged underpayment of their royalties. While most Plaintiffs sustained that injury in Texas, others did not. Therefore, the principal injuries prong is not satisfied in this case, and Plaintiffs have failed to demonstrate that the local controversy exception applies.

No. 24-40026 (March 1, 2024).