After a case was transfered to the District of Columbia, the Fifth Circuit granted mandamus relief about that transfer in In re Clarke, focusing on the district court’s analysis of the “local interest” factor

          [E]vents giving rise to the suit can be separated into two categories: The first concerns individual traders who purchased contracts on the marketplace. Five of them are based in Austin, bought their contracts from Austin, and have been harmed in Austin. The second category deals with marketplace service providers—Aristotle and PredictIt. Based in D.C., they “expended significant resources to assist Victoria University in developing and operating the PredictIt Market” and “will be forced to incur massive administrative, labor, time, and other costs if forced to liquidate pending contracts prematurely.”

          Given those events, there is an obvious connection between the facts giving rise to this case and the Western District of Texas. And, if we assume that Aristotle’s and PredictIt’s development and operations activities occurred in D.C., there is also a factual connection with D.D.C.

          Additionally, the effect of this suit is completely diffuse. Should plaintiffs prevail on their APA challenge, this court must “set aside” CFTC’s ultra vires recission action, with nationwide effect. That affects persons in all judicial districts equally.

No. 24-50079 (March 1, 2024) (footnote omitted). As with last week’s decision in a similar posture involving SpaceX, it remains to be seen whether the transferee district court will return the case.

Together with Marcy Greer, I recently gave an update about recent Fifth Circuit cases at the first-ever Central Texas Bench-Bar meeting. This is our PowerPoint from the March 1 presentation.

In 2022, a venue skirmish in a contentious firerarms-manufacturing case led to a Pennsylvania district court declining to return a transferred case to the Fifth Circuit. Echoes of that skirmish can be heard in In re Space Exploration Technologies Corp., a dispute between SpaceX and the NLRB, where the following occurred:

SpaceX petitioned this court for a writ of mandamus on February 16, 2024, requesting that we direct the district court to vacate its transfer order.  Our court stayed the Southern District of Texas’s transfer order on February 19, 2024. Nevertheless, the Central District of California docketed the case four days later, on February 23, 2024, as case number 2:24-cv-1352-CBM-AGR. 

Accordingly, the Fifth Circuit directed the district court to ask the California court to return the case. The Fifth Circuit’s order points out that the California court lacks jurisdiction, since the docketing did not occur until after the stay issued. And unlike the 2022 gun case, the transferee court agreed with the Fifth Circuit, and has indicated that it will return the case to Texas when it receives the official request from the Texas trial court. No. 24-40103 (Feb. 26, 2024) (unpublished order).

The plaintiffs’ takings claim failed in Treme v. St. John the Baptist Parish Council, when the relevant mineral lease was “for a period of Three (3) years from the date Lessee procures approval to commence operations frm local, state and federal authorities, as needed ….”  The requirement of government approvals created a “suspensive condition” to the lease’s effectiveness, and “[b]ecuase they have not been obtained, the district court was correct in determining that the lease had not yet become effective.” No. 23-30084 (Feb. 16, 2024).

February 2024 has been a busy month for en banc votes. The recent vote by the full court about a stay in U.S. v. Abbott, as well as votes to deny en banc review of Baker (a takings case about police destruction of a home) and Solis (holding that a preferential-transfer claim was stated as to a Stowers-related payment) provided an unusual snapshot of the full court’s views on multiple issues at the same time.

Those votes are now supplemented by an 8-9 vote to deny review in McNeal v. LeBlanc, a panel opinion that denied qualified immunity in an “overdetention” case. The below chart summarizes those votes (a “yes” vote is for en banc review or issuance of a stay, as appropriate):

Judges Jones, Ho, and Oldham voted “yes” for review of each of these four cases. Judges Southwick, Haynes, Higginson, Douglas, and Ramirez voted “no” for review of each of these four cases.

The contract between Catalyst (a consulting firm) and CBS (an equipment-rental company), required payment of a substantial fee if CBS satisfied the contract’s requirements as to a “Transaction.” The Fifth Circuit held that the contract supplanted the “procuring cause doctrine” recognized by Texas law as a default rule for such business situations, and further held that under the contract, Catalyst had made the required showing to recover its fee. Catalyst Strategic Advisors LLC v. Three Diamond Capital SBC LLC, No. 23-20030 (Feb. 22, 2024).

Aggrieved creditors argued that a recent Supreme Court opinion, which held that section 363(b) of the Bankruptcy Code was not jurisdictional (and could thus be waived), also impacted the scope of that statute when it applied. The Fifth Circuit rejected that argument in Swiss Re v. Fieldwood Energy, stating: “We perceive no narrowing of the effect of Section 363(b) other than to clarify that a party can lose the benefit of its terms.” No. 23-20104 (Feb. 20, 2024). From there, the Court found that the creditors’ appeal was moot because a stay had not been obtained, and the issues presented did not relate to anything left open by the bankruptcy plan.

(The illustration is from DALL-E, I asked it to illustrate the bankruptcy concept of statutory mootness, and it came up with that image, for no reason that I can ascertain. I offer it to you as a good example of generative AI doing something that is both very sophisticated and very weird.)

After the Texas Supreme Court answered a certified question about an arcane Texas limitations-tolling statute, the Fifth Court applied that answer in a later case presenting the same issue, Bullock v. UT-Arlington:

“The state trial court dismissed her case on June 8, 2020, for lack of jurisdiction. The dismissal was affirmed by the state appellate court on May 20, 2021. The appellate court’s plenary power expired on July 19, 2021. Under the Texas Supreme Court’s interpretation of Section 16.064(a)(2), Plaintiff had sixty days from July 19, 2021, in which she could refile her action in a court of proper jurisdiction. Plaintiff filed this instant lawsuit on July 16, 2021, before the state appellate court’s plenary power expired and well within the sixty-day grace period.”

No. 22-10013 (Feb. 15, 2024) (citations omitted).

Shaw v. Restoration Hardware, Inc. carefully describes the unique heritage of Louisiana law, and then reached a holding well known to the common law:

“By Shaw’s own allegations, the alleged contract was conditioned on RH wanting to use the at-issue artisans to produce nonlicensed designs and the outcome of the parties’ future negotiations regarding compensation. Because the at-issue agreement left the terms of potential compensation “wide open” to future negotiation, RH and Shaw never entered into an enforceable contract.”

No. 22-30277 (Feb. 15, 2024).

The recent vote by the full court about a stay in U.S. v. Abbott, as well as votes to deny en banc review of Baker (a takings case about police destruction of a home) and Solis (holding that a preferential-transfer claim was stated as to a Stowers-related payment) provide an unusual snapshot of the full court’s views on multiple issues at the same time. The below chart summarizes those votes (a “yes” vote is for en banc review or issuance of a stay, as appropriate):

In an opinion reversing the denial of a TCPA motion to dismiss, the Texas Supreme Court made a helpful observation for the legal blogging community:

[A]nyone who appreciates lawyerly precision has probably read plenty of news stories about legal affairs that gloss over lawyerly distinctions or contain inadvertent mischaracterizations of legal or procedural concepts. These journalistic imprecisions are not to be applauded, and they certainly can mislead the average reader in some cases. But errors of law by those reporting on the law are not automatically actionable as defamation.

Polk County Publ. Co. v. Coleman, No. 22-0103 (Tex. Feb. 16, 2024).

In United States v. Abbott, Texas contends that the Rio Grande is not navigable, which allows it to place a floating barrier in the river to deter navigation. After a Fifth Circuit panel affirmed the district court’s injunction against the barrier, the Court voted to take the case en banc, after which the district court placed the underlying case on a rapid schedule. Texas sought a stay, which the en banc Court denied for a variety of reasons:

A litigation trust, created as part of a bankruptcy plan confirmation, sued Raymond James. The trust asserted claims that had been assigned to the trust by aggrieved bondholders for the bankrupt entity, who contended that they had been misled about the bonds by Raymond James. (Remarkably, $300 million in bonds were sold in connection with a facility in rural Lousiana that would have refined raw wood into specialized fuel pellets.)

In defense, Raymond James cited an indemnity agreement that it made with the debtor pre-bankruptcy. The Fifth Circuit affirmed the lower courts’ conclusion that the plan barred Raymond James from defending with that agreement. The Court said:

1. Notice. “Even though [Debtor] failed to list Raymond James as a creditor when it filed for bankruptcy, Raymond James is nevertheless subject to the confirmation plan because of its actual knowledge of the underlying proceedings.”
2. Plan. “Even if Raymond James was not subject to the plan, [Debtor] no longer exists, and neither the bondholders nor post-confirmation entity are its successors-in-interest.”

Raymond James & Assoc. v. Jalbert, No. 23-30040 (Jan. 30, 2024).

An explosion on the M/V FLAMINIA (right) led to a $200 million arbitration award, which in turn led to an action to confirm that award in New Orleans federal court. The Fifth Circuit reversed for a lack of personal jurisdiction, concluding:

• Forum. “When assessing personal jurisdiction in a confirmation action under the New York Convention, a Convention, a federal court should consider contacts related to the parties’ underlying dispute and not only contacts related to the arbitration proceeding itself. That holding aligns our court with every other circuit to address this issue.”
• Waiver. Unlike the facts of an earlier case involving a “letter of understanding,” the defendant’s LOU in tihs case said that it was “given without prejudice to any and all rights or defenses MSC, its agents or affiliates have or may have in the Proceedings.”
• Contacts. “[T]he dispute’s sole contact with the forum—the DVB’s shipping from the Port of New Orleans—did not occur as a result of MSC’s ‘own choice.’ … [The fact that the DVB was loaded onto the FLAMINIA in New Orleans was the result of “the unilateral activity” of other parties, not MSC.” (citations omitted).

No. 22-30808 (Jan. 29, 2024).

The trademark-infringement issue in Rolex Watch USA, Inc. v Beckertime, LLC turned on whether the customary “digits-of-confusion” analysis should have been augmented by additional considerations involving the refurbishment of trademarked products. The Fifh Circuit agreed with the district court’s treatment of the issue:

Champion instructs that a reseller may utilize the trademark of another, so long as it involves nothing more than a restoration to the original condition, and not a new design. In that case, “[f]ull disclosure gives themanufacturer all the protection to which he is entitled.”  Here, BeckerTime does more than recondition or repair vintage Rolex watches. As the district court found, BeckerTime produced “modified watches,” with “added diamonds,” “aftermarket bezels,” and aftermarket bracelets or straps. It found that the watches sold by BeckerTime were “materially different than those sold by Rolex.” In fact, the district court found that Rolex has never sold watches matching the descriptions provided by BeckerTime. Unlike the plugs in Champion that “are nevertheless Champion plugs and not those of another make,” BeckerTime’s watches are of another make and cannot properly be called genuine Rolex watches. … Champion’s misnomer exception properly applied to the facts of this case and the district court did not err by conducting a traditional digits of confusion analysis.

No. 22-10866 (Jan. 27, 2024) (citations omitted).

This Instagram video with fonts talking to each other is really funny. Thanks to my law partner Mary Nix for sending it my way.

Rolex Watch USA, Inc. v Beckertime, LLC affirmed a finding of infringement, while also affirming the trial court’s finding that laches precluded a disgorgement award:

The district court concluded that at a minimum, Rolex’s agent “should have known about BeckerTime in 2010, ten years prior to the filing of the lawsuit, and no later than 2013 when [a Rolex employee] wrote that BeckerTime watches were junk.” …  On appeal, Rolex offers no justification for the delay, instead arguing that BeckerTime failed to show prejudice. But the record supports that the ten years of permitted sales enabled BeckerTime to build up a successful business that it would not otherwise have invested in absent Rolex’s delay in filing suit. This is clear prejudice.

No. 22-10866 (Jan. 26, 2024).

After a massive computer failure, Southwest sued one of its cyber risk insures about five categories of damages (vouchers, frequent-flier miles, etc. used to mitigate the effects of the outage). The district court ruled against Southwest, describing the losses as arising from “purely discretionary” decisions.

The Fifth Circuit reversed. Acknowledging that the policy covered “all Loss … that in Insured incurs … solely as a result of a System Failure,” the Court reasoned:

Here, Liberty argues that the system failure cannot be the sole cause of Southwest’s claimed costs because the “independent” and “more direct” cause of those losses was Southwest’s decision to incur them. But those decisions can only be independent, sole causes of the costs if they were the precipitating causes of the costs. The decisions, like the infection in Wright or the medical complications in Wells, were not precipitating causes that competed with the system failure, but links in a causal chain that led back to the system failure. 

Accordingly, the Court reversed and remanded. Southwest Airlines Co. v. Liberty Ins. Underwriters, Inc., No. 22-10942 (Jan. 16, 2024). The Court noted that “[t]he parties concede that there are no cases directly on point in the context of business interruption insurance.”

A challenge to the sale of a preference claim was rejected by the Fifth Circuit in Briar Capital v. Remmert: “[P]reference actions may be sold pursuant to 11 U.S.C. § 363(b)(1) because they are property of the estate under 11 U.S.C. §§ 541(a)(1) and (7). ” No. 22-20536 (Jan. 22, 2024).

By a 9-7 margin, the full Fifth Circuit held that qualified immunity barred the wrongful-arrest claims of a Laredo “citizen-journalist.” Villarreal v. City of Laredo, No. 20-40359 (Jan. 23, 2024). The breakdown of votes appears below:

To the right appears William Humphrey, who like William Marbury, is known to history as the subject matter of a famous opinion. President Roosevelt’s efforts to remove Humphrey from the Federal Trade Commission led to the 1935 Supreme Court case of Humphrey’s Executor v. United States, about constitutional limits on the structure of administrative agencies. (Humphrey died during the litigation so his executor continued with the matter). In Consumers’ Research v. CPSC, the Fifth Circuit summarized the current state of the issue addressed by Humphrey’s Executor as follows:

     The Humphrey’s exception traditionally “has applied only to multimember bodies of experts.” Sitting en banc, we recently described the exception like this: Congress’s decision “limiting the President to ‘for cause’ removal is not sufficient to trigger a separation-of-powers violation.” Instead, for-cause removal creates a separation-of-powers problem only if it “combine[s]” with “other independence-promoting mechanisms” that “work[] together” to “excessively insulate” an independent agency from presidential control.

     The plaintiffs in this case argue that the Supreme Court recently upended this framework in Seila Law. In their view, that 2020 decision held that for-cause removal always creates a separation-of-powers violation—at least if the agency at issue exercises substantial executive power (which nearly all agencies do). This is so, the plaintiffs argue, even if for-cause removal is the only structural feature insulating an agency from total presidential control. We do not read Seila Law so broadly. On the contrary, and as in Free Enterprise Fund, the Supreme Court in Seila Law left the Humphrey’s Executor exception “in place.”

No. 22-40328 (Jan. 17, 2024) (citations and footnote omitted).

After carefully reviewing what arguments were properly before it, the Fifth Circuit went on to hold in Shambaugh & Son, LP v. Steadfast Ins. Co. that the plaintiff had not established jurisdiction over an out-of-state insurer: “Steadfast could not have reasonably anticipated being haled into court in Texas simply because Shambaugh’s records were kept in an office (in Austin) maintained by a division (Northstar) of a subsidiary (Shambaugh).” No. 23-50004 (Jan. 18, 2024). The Court noted the insurer’s involvement with other Texas litigation but found those contacts irrelevant and inadequate to establishe jurisdiction.

Shambaugh & Son, LP v. Steadfast Ins. Co. presents a dispute about personal jurisdiction in an insurance-coverage case. The Fifth Circuit began by identifying the arguments properly before it, noting the distinction between waiver and forfeiture:

“The terms waiver and forfeiture—though often used interchangeably by jurists and litigants—are not synonymous.”  “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’”

Applying those standards, the Court observed, inter alia:

• “… if complaint allegations alone prevented subsequent forfeiture, then
  it is difficult to imagine when any claim or argument could ever be forfeited”;
• “… if including a claim in a complaint fails to preserve that claim … then a fortiori attaching an exhibit to a pleading does not insulate arguments derived from that exhibit“;
• A statement about choice of law did not avoid forfeiture when that “statement is nested within a broader discussion about forum shopping”;
• An argument about a specific statute was forfeited, and was not saved by a broader discussion about minimum contacts, when the lower-court briefing did not cite that statute and the statutory argument “is narrower and conceptually distinct from [appellant’s] other minimum contacts arguments.”

No. 23-50004 (Jan. 18, 2024).

In Book People, Inc. v. Wong, the Fifth Circuit reviewed the constitutionality of the Texas “READER” law, which “requires school book vendors who want to do business with Texas public schools to issue sexual-content ratings for all library materials they have ever sold (or will sell), flagging any materials deemed to be ‘sexually explicit’ or ‘sexually relevant’ based on the materials’ depictions of or references to sex.”

The Court held that the law violated the First Amendment, in that the ratings required by the law were not government speech, and fell within no exception to the rule against “compelled speech”:

1.  They did not come within the “government operations” exception because they “go[] beyond a mere disclosure of demographic or similar factual information.”
2. Similarly, they were not a permissible commercial-speech regulation because “[b]alancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information.

No. 23-50668 (Jan. 17, 2024).

Start the New Year off right!

Please join the Dallas Bar Association Appellate Section at noon on Thursday, January 18, for a lunch presentation by me. I’ll be speaking on trends and cases to know from the past year in the U.S. Court of Appeals for the Fifth Circuit and the Fifth District Court of Appeals. I’ve done a similar presentation around this time of year for a few years now.

Here’s my PowerPoint. This CLE will be in-person at the Arts District Mansion, 2101 Ross in downtown Dallas.

State of Louisiana v. U.S. Dep’t of Energy is an instructive analysis of basic administrative rulemaking concepts, in the unlikely setting of the regulation of washing machines and dishwashers. The substance will be discussed in future posts.

For today, in the “who knew?” department, the plaintiffs were several states, and their standing was based on the substantial purchases that those states made of those appliances. An affidavit quoted in the opinion, for example, describes the purchasing habits of the Montana Highway Patrol as to appliances for its bunkhouses. No. 22-60146 (Jan. 8, 2023).

The issue in Stewart v. Gruber was the exclusion of an untimely expert report; among other points made in affirming, the Fifth Circuit noted:

Plaintiffs fail to identify any precedent barring courts from considering whether the proponent of an untimely expert report declined an opportunity to cure such untimeliness by refusing to join a motion to continue that would have extended deadlines for both parties and therefore lessened any prejudice to the opposing party. Put another way, Plaintiffs were only willing to have extra time for them, not a similar extension for the Defendants who would need to, of course, have an expert that addressed the Plaintiffs’ expert. Such a notion on the part of the Plaintiffs was totally improper.

No. 23-30129 (Dec. 14, 2023, unpublished).

Illumina, Inc. v. FTC provides a comprehensive review of every aspect of an FTC antitrust decision about a merger:

To sum up, Illumina’s constitutional challenges to the FTC’s authority are foreclosed by binding Supreme Court precedent, and substantial evidence supported the Commission’s conclusions that (1) the relevant market is the market for the research, development, and commercialization of MCED tests in the United States; (2) Complaint Counsel carried its initial burden of showing that the Illumina-Grail merger is likely to substantially lessen competition in that market under either the ability-and-incentive test or looking to the Brown Shoe factors; and (3) Illumina had not identified cognizable efficiencies to rebut the anticompetitive effects of the merger. However, in considering the Open Offer, the Commission used a standard that was incompatible with the plain language of the Clayton Act. 

No. 23-60167 (Dec. 15, 2023). The “Open Offer” issue involved a dispute about precisely where an agreement, entered to stave off competition-based challenges to this merger, should be considered in the context of the relevant burdens of proof.

The concurrent causation doctrine precluded recovery under an insurance policy for alleged hurricane damage in Shree Rama, LLC v. Mt. Hawley Ins. Co.:

Shree Rama did not carry its burden under the concurrent causation doctrine. The policy issued by Mt. Hawley explicitly covers damage from wind and explicitly excludes damage from wear and tear. Viewing the facts in the light most favorable to Shree Rama, it is possible that some damage to the hotel roof came from Hurricane Hanna and some from wear and tear. But the concurrent causation doctrine requires Shree Rama to provide the jury with “a reasonable basis” for allocating the damage between wind and wear and tear. . Shree Rama provided no reasonable basis. To the contrary, Shree Rama admitted at the district court level that its causation expert “could not definitively attribute [specific damages to the roof] to Hurricane Hanna when deposed.” Without a basis for allocating damages between covered and non- covered causes, Mt. Hawley was entitled to summary judgment.

No. 23-40123 (Dec. 14, 2023) (citations omitted).

Smith v. Edwards examined whether a preliminary injunction should be vacated when the dispute became moot on appeal:

     “[H]istorically, the established rule was to vacate the judgment if the case became moot on appeal.” However, in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,  “[t]he Supreme Court made clear and emphasized that vacatur is an ‘extraordinary’ and equitable remedy . . . to be determined on a case-by-case basis.” One principal consideration “is whether the party seeking relief from the judgment . . . caused the mootness by voluntary action.” “Thus, for example, ‘vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the [district] court.’” 

     The equitable principles espoused in U.S. Bancorp and recognized by Staley apply in this case. Though Defendants complied with the preliminary injunction by removing the youths from BCCY-WF, they did not cause mootness by voluntary action. And though the injunction automatically expired under the PLRA, Plaintiffs could have sought an extension to extend its duration. . Having been “frustrated by the vagaries of circumstance, [Defendants] ought not in fairness be forced to acquiesce in the judgment.

No. 23-30634 (Dec. 19, 2023).

Start the New Year out right with “Get the Last Word in an Effective Reply Brief,” which I recently co-wrote for the Bar Association of the Fifth Federal Circuit with my skillful colleague Campbell Sode – available here along with many other valuable practice pointers by members of that great bar association.

Reiterating a recent holding in a near-identical lawsuit, in Bourque v. State Farm the Fifth Circuit rejected the certification of a class of insureds who were dissatisfied with the amount paid by State Farm for their wrecked cars:

Plaintiffs contended that they had met this standard because any class member who was paid less than the [National Automobile Dealers’ Association] value of their vehicle necessarily received less than [Actual Cash Value] and therefore suffered an injury. But we rejected that premise, explaining that NADA value was just one of many statutorily acceptable methods for calculating ACV, and therefore pinning ACV to NADA value constituted an impermissibly arbitrary choice of a liability model. 

No. 22-30126 (Dec. 22, 2023).

The Bar Association of the Fifth Federal Circuit is the bar association to belong to if you’re interested in the work of the U.S. Court of Appeals for the Fifth Circuit. More information about member benefits is detailed on the BAFFC’s website. One of those benefits is a terrific set of short (c. 500 word) articles about appellate practice (here’s an example that I did about a year ago on oral-argument preparation).

Please consider writing one yourself! A link will be emailed out several times to the BAFFC’s thousands of members, as part of its daily updates about recent decisions, and it’ll be available to the membership online as part of the full collection of these pieces. Contact BAFFC administrator Mary Douglas at mary@baffc.org!

The National Court Reporters Association recently published a fascinating “white paper” about “ethical and legal issues related to the use of artificial intelligence … and digital audio recording of legal proceedings.” It’s succinct, thoughtful, and raises questions relevant to just about any area of law practice or court administration that’s touched by the influence of generative AI and related technologies.

A Fifth Circuit panel applied circuit precedent to reject a liablity claim involving Snapchat in Doe v. Snap, Inc., No. 22-20543 (June 26, 2023), stating: “Parties complaining that they were harmed by a Web site’s publication of user-generated content . . . may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online.” By a one-vote margin, the full court denied en banc review, as follows (notably, Edith Jones voted with the court’s Democrats to not review the panel opinion): 

The mifepristone litigation – recently selected by Law360 as the most notable case of 2023 from the Fifth Circuit – will be heard by the Supreme Court. While it did not grant the petition about the original approval of mifepristone, a wide range of significant issues–including important standing questions, and the modern viability of the Comstock Act–are ripe for decision as part of the granted petitions:

Whatever your views of the remarkable civil-rights issue presented by Wilson v. Midland County (the intersection between some highly technical immunity rules and the bizarre injustice of a county employee working simultaneously for the prosecution and the courts), one can admire the deft prose of Jude Willett’s opinion:

The Fifth Circuit reminded about the basics of issue statements in Smith v. Delta Charter Group, Inc.:

Delta also forfeited its argument that the district court should have instead applied Rule 54(b). Delta didn’t include this argument in its “Statement of the Issue” or in the body of its opening brief—rather, Delta relegated it to a footnote. We have repeatedly cautioned that arguments appearing only in footnotes are “insufficiently addressed in the body of the brief” and are thus forfeited. Delta’s Rule 54(b) argument meets this predictable fate.

No. 23-30063 (Dec. 13, 2023).  Note that this is NOT a criticism of the “citational footnote”–and in fact, the concept of the citational footnote rejects this sort of stealthy, footnote-only legal argument.

“Here, ‘all parties have agreed from the beginning of this case that Houston’s voter registration provisions governing circulators’  are unconstitutional. The City also agreed that it ‘would and could not enforce the provisions.’ The City has repeatedly and consistently emphasized its agreement with the plaintiffs throughout this suit. Such faux disputes do not belong in federal court.”

Pool v. City of Houston, No. 22-20491 (Dec. 11, 2023) (citations omitted).

The defendant in a boat-collision case challenged the admission of an accident reconstruction; the plaintiff argued that this point was not preserved. The Fifth Circuit concluded that the defendant had preserved some grounds for objection in a pretrial motion to exclude, a proposed pretrial order, and another pretrial filing about evidence. Thus: “[Defendant’s] pretrial objections preserved the arguments contained in Balkan’s motion in limine concerning authrntication and expert testimony. But neither he nor Balkan argued below that the reconstruction was inadmissible summary judgment evidence. That argument thus was not preserved for appeal.” Marquette Transp. Co. v. Navigation Maritime Bulgare JSC, No. 22-30261 (Dec. 4, 2023).

The Senate recently confirmed Hon. Irma Ramirez of Dallas as a judge on the Fifth Circuit. When she takes office the Court will again be at a full complement of active judges.

Eschewing exotic constitutional issues about a state’s rights to engage in military activity, the Fifth Circuit affirmed a preliminary injunction requiring Texas to remove an obstacle from the Rio Grande, citing the federal government’s exclusive authority as to navigable waters. United States v. Abbott, No. 23-50632 (Dec. 1, 2023). A dissent had a different view; some serious consideration of en banc review is likely.

After resolving threshold matters about justiciability, the Fifth Circuit rejected facial First Amendment challenges to Texas laws about the use of drones in Nat’l Press Photographers Ass’n v. McCraw, as follows:

• “No-Fly” provisions. “Plaintiffs’ First Amendment challenge to the No-Fly provisions falters because ‘only conduct that is “inherently expressive” is entitled to First Amendment protection.’ The operation of a drone is not inherently expressive—nor is it expressive to fly a drone 400 feet over a prison, sports venue, or critical infrastructure facility. And nothing in the No-Fly provisions has anything to do with speech or expression. These are flight restrictions, not speech restrictions.” (footnotes omitted, emphasis in original).
• “Surveillance” provisions (which prohibit the use of a drone to capture images “with the intent to conduct surveillance ….”). “Though most drone operators harbor no harmful intent, drones have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach. … The law is also tailored to bar only surveillance
  that could not be achieved through ordinary means …. We therefore conclude that the law survives intermediate scrutiny.”

No. 22-50337 (Oct. 23, 2023). The opinion was later revised.

An antitrust case in Tennessee recently produced a remarkably contentious dispute about the definition of “double spacing,” as deftly summarized in this “Above the Law” article titled “Heated Litigation Fight Over Double Spacing Ends in Judge Telling Everyone to Shut Up.” While the dispute was picayune, the discussion of just what exactly “double spacing” means is interesting background for a modern word-processing feature that we seldom stop and think about. Thanks to my law partner Chris Schwegmann for flagging this for me.

A series of cases about the EPA’s regulation of small refineries led to a disagreement about Circuit venue over this kind of administrative-agency challenge. A majority appled a two-part test focused on whether the agency action was “nationally applicable”; the dissent rejected the majority’s analysis as inconsistent with statutory text, purpose, and structure. No. 22-60266 etc. (Nov. 22, 2023).

The “Lyme Wars” are an ongoing medical controversy about the diagnosis and treatment of Lyme disease. Absent Supreme Court review, one front in those “wars” ended in Torrey v. Infectious Diseases Society of America, in which the Fifth Circuit affirmed the dismissal of defamation claims related to statements in a medical journal: “[T[he district court did not err in holding that IDSA’s Guidelines statements about chronic Lyme disease constitute nonactionable medical opinions.” No. 22-40728 (Nov. 16, 2023).

The latest installment in the “Bar Wars” litigation about speech by compulsory bar associations is Boudreaux v. Louisiana State Bar Ass’n, holding:

[T]he majority of speech Boudreaux objects to is germane. Speech can be germane even if it is “controversial and ideological.” But the LSBA crossed the line when it promoted purely informational articles absent any tailoring to the legal profession. That includes the LSBA’s tweet about student-loan reform and its promotion of the History.com article through a pride flag icon. Advancing generic political and social messages in those ways violates the First Amendment rights of the LSBA’s dissenting members. 

No. 22-30564 (Nov. 13, 2023).

The question in Elmen Holdings, LLC v. Martin Marietta Mat’ls, Inc. was whether a gravell-mining lease had terminated. The district court included that it had been terminated, and the appellant’s first issue was that the court’s analysis went too far under the “party-presentation” principle — a concept given new life and relevance by United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020).

The Fifth Circuit concluded that while the appellant’s argument “had some merit,” the trial court did not go too far:

“[T]he magistrate judge recommended granting Elmen’s motion for summary judgment because Martin Marietta had been late on several royalty payments. The magistrate judge did not ‘radical[ly] transform[]’ this case to such an extent as to constitute an abuse of discretion; she merely took a different route than Martin Marietta and Elmen had suggested to ;decide . . . questions presented by the parties.’ Therefore, the magistrate judge did not violate the party presentation principle by interpreting the Gravel Lease to terminate automatically upon a missed royalty payment, even if that interpretation was contrary to the parties’ reading of their contract.”

No. 23-20023 (Nov. 15, 2023); cf. United Natural Foods v. NLRB, 66 F.4th 536 (5th Cir. 2023) (majority and dissent disagree about whether a particular line of argument is allowed by the party-presentation principle).

Anytime Fitness LLC v. Thornhill Bros. Fitness LLC, acknowledging that a bankruptcy debtor may assign or assume an executory contract, provided an important reminder about the extent of that power: “We reiterate our prior holdings: a debtor assuming an executory contract cannot separate the wheat from the chaff. And we make clear that, when a trustee relies on § 365(f) to assign an executory contract in bankruptcy, it must assign the contract in whole, not in part.” No. 22-30757 (Oct. 27, 2023).

The Oil Pollution Act provides remedies for the wrongful release of oil into the environment. CERCLA does the same for a number of other pollutants. The issue in Munoz v. Intercontinental Terminals Co., LLC was whether OPA liability extended to a spill that combined oil with other hazardous substances regulated by CERCLA. Based on statutory language and structure, the Fifth Circuit concluded that the OPA did not apply to such a chemical release. No. 22-20456 (Oct. 27, 2023).