The Fifth Circuit affirmed the certification of a class of GEICO car-insurance policyholders in Angell v. GEICO Adv. Ins. Co., holding, inter alia:

• 3 ways to breach 1 contract = 1 injury. “GEICO’s failure to remit any of the three Purchasing Fees amounts to the same harm—a breach of the Policies. Whether GEICO is liable to Plaintiffs for any of the Purchasing Fees is dependent on an interpretation on the same language in the Policies and how the Policies to support the standing approach …. Although each of the Purchasing Fees may accrue differently, e.g., through the acquisition of a vehicle or upon the expiration of a vehicle’s registration, the complained injury stems from GEICO’s failed remittance, not the costs as assessed by the State.”
• 1 injury = typicality. “The course of conduct here is virtually the
  same across the alleged deprivations of each Purchasing Fee, i.e., whether
  GEICO breached the Policies.”
• 1 injury = predominance. “[T]he need for individual calculation here is relatively minor when compared to the common issues that predominate. And Plaintiffs articulate a reasonably ascertainable formula. Sales tax is equivalent to 6.25% of [Adjusted Vehicle Value], and Plaintiffs contend that it can be calculated for almost 97% of the class without resort to individualized review.”

No. 22-20093 (May 12, 2023) (all citations omitted).

It was a busy week for legislative privilege; after an opinion involving the latest dispute about the Jackson airport, the Fifth Circuit again ruled in favor of legislative-privilege claims in LULAC v. Hughes. The Court held that such matters were appropriately raised by interlocutory appeal, and on the merits observed:

“The privilege log shows that the legislators did not send privileged documents to third parties outside the legislative process; instead they brought third parties into the process. That decision did not waive the privilege. The very fact that Plaintiffs need discovery to access these documents shows that they have not been shared publicly. On the other hand, if the legislators had shared the documents publicly, then they could not rely on the privilege to prevent Plaintiffs from introducing those documents as evidence. But here, where the documents have been shared with some third parties—but haven’t been shared publicly—the waiver argument fails.”

No. 22-50435 (May 17, 2023) (emphasis in original).

Back during the pandemic, I got a copy of “Dallam’s Decisions.” It’s a one-volume work with the opinions of the short-lived Supreme Court of the  of Texas (1840-45, give or take). It’s fascinating stuff, some of that court’s work is terrible, and some is really insightful.

I wrote down some notes about how that court dealt with slavery, and recently turned those notes into a short article.

It just came out in the “Journal of the Texas Supreme Court Historical Society,” and you can read it starting at page 75 of this link. As you can see, I think those cases offer some good insights about our world, as well as that of the 1840s.

In response to an April 27 letter from Senator Charles Schumer expressing concern about case-assignment practices in the Northern District of Texas (which, while well-intentioned, also notably misspells “Abilene” as “Abeline”), Chief Judge David Godbey wrote back yesterday to defend the District’s practices: “In addition to the fair administration of justice, we must also consider: the number and type of civil and criminal cases filed in a division, which varies significantly from division to division; the convenience of the jurors, witnesses, parties, and attorneys; the desire of communities to have local judges; the burden of travel on court personnel; and the need to provide judicial support for divisions without a resident district judge.”

Complex litigation about the settlement of a patent dispute led to two straightforward jurisdictional holdings in National Oilwell Varco, LP v Auto-Dril, Inc.:

1. Res judicata still applies. While “[p]arties may not waive the issue of subject matter jurisdiction,” it is also true that “[a] party that has had an opportunity to liitgate the question of subject-matter jurisdiction may not … reopen that question in a collateral attack upon an adverse judgment.” That principle disposed of an argument that, in the earlier case where the settlement was reached, the district court lacked jurisdiction because of problems with the underlying patent.
2.  “‘Interpretation’ means — interpretation. In that earlier case, the district court’s order implementing the settlement said that it retained jurisdiction “in the event of a dispute concerning that agreement, to interpret and enforce the agreement, if necessary.” That langugage did not extend to subject-matter jurisdiction over a fraudulent-inducement claim, as that “is a tort claim falling outside the scope of the district court’s retained jurisdiction.”

No. 21-40648 (May 12, 2023).

Contentious litigation about the governance of the Jackson Municipal Airport again reached the Fifth Circuit in Jackson Municipal Airport Auth. v. Harkins, No. 21-60312 (May 10, 2023). The Court accepted jurisdiction in a document-production dispute for reasons unique to governmental privilege, but its waiver reasoning is instructive more broadly:

As relevant here, communications with third parties outside the legislature might still be within the sphere of “legitimate legislative activity” if the communication bears on potential legislation. Consequently, some communications with third parties, such as private communications with advocacy groups, are protected by legislative privilege when they are “a part and parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider.” Thus, we disagree with the district court’s broad pronouncement that the Legislators waived their legislative privilege for any documents or information that had been shared with third parties.

No 21-60312 (May 10, 2023) (citations omitted).

A judge at every level of the Texas state system, as well as the U.S. Court of Appeals for the Fifth Circuit, Hon. Fortunato “Pete” Benavides recently passed away. His life of dedicated public service is well described in this obituary.

Among other issues presented by an unsuccessful attempt to relitigate an unsuccessful state-court takings claim in federal court, the Fifth Circuit reminded rhat the word “final” can have many meanings: “[A]lthough the rights of ‘all’ parties often need to be resolved before a judgment is ‘final’ for appeal, a ‘judgment may be final in a res judicata sense as to a part of an action although the litigation continues as to the rest.'” Tejas Motel LLC v. City of Mesquite, No. 22-10321 (March 22, 2023).

Sidestepping questions of equitable mootness, in Texxon Petrochemicals LLC v. Getty Leasing, Inc., No. 22-40357 (May 3, 2023), the Fifth Circuit affirmed the lower courts’ conclusions that this two-email exchange did not establish a contract to sell a North Austin gas station:

Despite skepticism in other opinions about vaccination programs in response to the COVID pandemic (especially when religious-liberty issues are in play), the Fifth Circuit reversed and rendered judgment for a prison doctor who administered an antipsychotic drug to a dangerous prisoner. The Court reasoned, inter alia: “[E]mergency  circumstances justify the abbreviation or elimination of pre-deprivation procedures like hearings.” Pinkston v. Kuiper, No. 21-60320 (May 4, 2023) (per curiam).

Owners of a yacht sued in Texas about an insurance-coverage issue. The Fifth Circuit affirmed the dismissal of the case because of a forum-selection clause requiring suit in England, noting;

1. Standard. When the parties have a valid forum-selection clause, the general forum non conveniens factors are modified in two ways. “‘First, the plaintiff’s choice of forum merits no weight’ because, by contracting for a specific forum, ‘the plaintiff has effectively exercised its “venue privilege” before a dispute arises.'” And “[s]econd, the private-interest factors ‘weigh entirely in favor of the preselected forum’ ….” (citations omitted).
2. Limitations? Plaintiffs were concerned about how an English court would apply the statute of limitations. But the case law says that “dismissal of a suit ‘when the plaintiff has violated a contractual obligation by filing suit other than the one specified in a valid forum-seleciton clause … works no injustice on the plaintiff.'” (citation omitted).

Noble House LLC v. Certain Underwriters at Lloyd’s, London, No. 22-20281 (May 1, 2023).

Restaurant Law Center v. U.S. Dep’t of Labor presented an appeal from the denial of a preliminary injunction about a new minimum-wage rule. The dispute was the district court’s conclusion that the plaintiff did not establish irreparable injury.

The panel majority faulted the district judge for not considering Circuit precedent that “the nonrecoverable costs of complying with a putatively invalid regulation typically constitute irreparable harm.” The majority also observed that the face of the regulation imposed certain administrative requirements, and that “[s]tringently insisting on a precise dollar figure reflects an exactitude our law does not require.”

The dissent, emphasizing the standard of review, faulted the majority for “reasoning that because some employers will be harmed by the Rule’s wide net, Plaintiffs via their member restaurants will inevitably by caught in the seine” (an observation about standing that bears on a central question in the upcoming mifepristone argument).  No. 22-50145 (April 28, 2023).

Ganpat v. Eastern Pacific Shipping PTE presented a clash between international antisuit injunctions, and produced diametrically opposed opinions about those proceedings and the appropriate judicial response to them.

Majority and dissent agreed on this much:

• Ganpat, an Indian citizen who served on a ship managed by Eastern Pacific, sued in New Orleans about a nasty case of malaria that he caught while serving.
• Eastern Pacific then sued Ganpat in India, won an anti-suit injunction against the American case, and aggressively enforced that order against Ganpat, ultimately getting him jailed in India.
• These events prompted the New Orleans federal court to issue an anti-suit injunction against Eastern Pacific proceeding further with the Indian case.

But from there, the opinions–both, considerably detailed–went in opposite directions in almost every way. The majority affirmed the injunction, calling the Indian proceedings  “bizarre” and saying that Eastern Pacific “evaded service,” while the dissent saw “the district court’s rulings as an attempt to compel domestic jurisdiction over a suit with highly tenuous domestic connections.”

The substantial divide between the opinions aptly frames the first sentence in the dissent’s footnote, referring to the Fifth Circuit having “take[n] a more permissive approach to foreign antisuit injunctions than many of our sister circuits: “This approach is probably wrong and should be reconsidered at an appropriate time.” No. 22-30168 (April 28, 2023) (Judge Ho (writing) and Wilson in the majority, Judge Jones dissenting).

United Natural Foods, Inc. v. NLRB, No.  a seemingly dry dispute about whether NLRB’s general counsel could withdraw an unfair labor practice complaint, produced a spirited clash between majority and dissent about how the “party presentation” principle applied to the arguments advanced in that case (see United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020)). No. 21-60532 (April 24, 2023).

Despite that clash, all panel members agreed that simply throwing shade at Chevron was insufficient to present an issue for appellate review:

Turtle Island Foods (d/b/a Tofurky) makes plant-based food products, such as plant-based burgers, sausages, etc. It sued the Louisiana Agriculture Commissioner because of concerns about liability under that state’s Truth in Labeling of Food Products Act, which imposes civil penalties for “representing a food product as meat .. when the food product is not derived” from an animal.

The Fifth Circuit held as follows:

1. Standing. Tofurky had standing. It did not have to “establish that it openly intends to violate the Act”; only that “its intended action–continuing with its ‘plant-based’ labels that use meat-esque words–is arguably proscribed.”
2. Merits. Louisiana argued that by its terms, the law “applies only to ‘persons who intentionally misbrand or misrepresent” facts about a food product. In the context of a facial challenge, the Court was “required ‘to accept a narrowing construction of a state law in order to preserve its constitutionality.'”

With the issue so framed, the Court ruled for the state and reversed the trial court’s injunction against enforcement of the law. Turtle Island Foods v. Strain, No. 22-30236 (April 12, 2023) (citations omitted).

In review of a court-supervised sale of real property in a bankruptcy case, the Fifth Circuit provided a deft summary of how bankruptcy came to be an area of concern to the framers of the Constitution:

Federal bankruptcy provisions date to the Founding, embedded into our Constitution as a core tenet of the country’s economic vitality. And with good reason: “[d]ebt was an inescapable fact of life in early America . . . [that] cut across regional, class, and occupational lines,” and debtor’s prisons were antithetical to the new democratic ideal. So, in parallel with the industrialization and modernization of our markets, the Bankruptcy Code matured, its execution shifting to an independent court staffed by an array of able judges selected by merit and expert in the field, giving bankruptcy courts with their new status a crucial role in freeing the entrepreneurial energy indispensable to our nation’s economy.

SR Construction, Inc. v. Hall Palm Springs LLC, No. 21-11244 (April 17, 2023) (citations omitted).

After the Supreme Court’s stay ruling yesterday, a Fifth Circuit panel will proceed wth oral argument on May 17 in New Orleans. (Information about the audio livestream may be found in that link.)

While the Supreme Court’s order said very little, the votes of seven Justices were consistent with the position of Judge Haynes when the stay issue was before the Fifth Circuit, and no Justice indicated agreement with the analysis of the per curiam panel majority. (I recently observed in Slate that the “Dobbs-era Supreme Court is well aware of the judicial strand of conservative thought, as well as the political.”).

The plaintiffs in Spano v. Whole Foods, Inc. contended that a child with severe allergies was injured after eating a mislabeled cupcake. The district court dismissed the claims as preempted by the Federal Food, Drug, and Cosmetic Act, and the Fifth Circuit reversed, stating that “[t]he question is whether Appellants have pled tort claims which have an independent state law basis,” and concluding that “[t]ey have”:

Each of their tort claims is ‘a recognized state tort claim’ rather than ‘a freestanding federal cause of action based on violation of the FDA’s regulations.’ Appellants ably lay out in their brief that each of their allegations is based in state law. In response, Whole Foods contends that “[e]very one of the … causes of action is specifically based on federally mandated allergen warnings under the FDCA.” While each of the causes of action does reference violations of FDA regulations, violations can only be, and only are, presented as evidence to “prove [Whole Foods’] breach of the state duty by showing that [Whole Foods] violated the FDA’s [food labeling] regulations.’ If, as the case develops, it becomes clear that there is no independent state duty upon which the Spanos can hang a particular claim, that claim will be preempted. On the pleadings, none appear to contain that fault.” 

No. 22-50593 (April 14, 2023) (citations omitted).

A copyright action is governed by a three-year statute of limitations. In Martinelli v. Hearst Newspapers, LLC, the Fifth Circuit confirmed that recent Supreme Court decisions did not overruled Circuit precedent that applies a discovery rule to that statute. No. 22-2033 (April 13, 2023).

President Biden has nominated Hon. Irma Ramirez, a long-serving magistrate judge from the Dallas area, for the vacant seat on the Fifth Circuit created by the resignation of Gregg Costa. More detail is in the coverage by the Dallas Morning News.

The motions panel ruled in Alliance for Hippocratic Medicine v. FDA, No. 23-10362 (April 12, 2023). In a nutshell, the panel majority concludes that (1) the plaintiffs have standing based on the percentage of mifepristone users who have side effects, (2) the plaintiffs’ challenge to FDA’s original approval of mifepristone for use in medication abortions is likely time-barred, and (3) FDA did not meet its burden, as the party seeking a stay, to show that plaintiff’s other challenges to FDA’s regulation of mifepristone were time-barred or otherwise fatally flawed. Judge Haynes would have granted an administrative stay and otherwise deferred to the merits panel (who is, in fact, not constrained by any of (1)-(3)). Further proceedings in the Supreme Court appear likely.

Valuable 600Camp merchandise can be yours if you identify the distinguished-looking gentleman to the right.

In Abdullah v. Paxton, a former state employee sued about potential future injuries, resulting from a state law that requires certain retirement funds to divest from companies that boycott Israel. The Fifth Circuit affirmed the dismissal of his suit on standing grounds, reminding:

The only way Abdullah could demonstrate he will “actually” suffer future economic harm is if he plausibly alleged that, as a result of § 808’s constraints, the Systems will not be able to pay out his benefits at all when he reaches retirement.  Abdullah tries his hand at this argument, urging that the Systems are underfunded, so there is a credible threat the fund will fail. But we are unconvinced—this theory is simply too speculative (and also ignores Texas’s ability to obtain funds by taxes, fees, assessments, etc.).

No. 22-50315 (April 11, 2023) (citations omitted).

Longrunning litigation about pretrial bail in Texas criminal cases came to an end with a second en banc opinion, Daves v. Dallas County, No. 18-11368 (March 31, 2023). It held by a substantial majority that legislative changes to the relevant laws had mooted the case, and (8-7) that Younger abstention should have barred the case from proceeding in federal court in the first instance. The breakdown of votes and opinions is as follows:

I have an article in Slate today about a challenge presented by the appeal of the medication-abortion decision. The case presents a “politically” conservative outcome (restricted abortion access), that rests on a standing argument that is not “judicially” conservative because of the amount of speculation it requires.

Austin’s regulation of large freeway billboards returned to the Fifth Circuit after an earlier opinion was reversed by the Supreme Court; on remand, a 2-1 majority cut to the chase and concluded: “Municipalities have traditionally been given wide discretion in the domain of sign regulations. Austin is entitled to that latitude. AFFIRMED.” A dissent read the signs given by the Supreme Court differently. Reagan National Adv. of Austin, Inc. v. City of Austin, No. 19-50354 (March 30, 2023).

In Direct Biologics, LLC v. McQueen, a preliminary-injunction case involving a noncompetition agreement, the Fifth Circuit found no abuse of discretion when the district court declined to presume irreparableharm. Among other factors reviewed by the Court, it considered:

• “[I]t is unclear whether federal courts should apply a state-law ‘presumption of irreparable harm’ when determining whether a preliminary injunction should issue in federal court.
• “The district court did not abuse its discretion by declining to presume irreparable injury based on McQueen’s breach of his non-compete covenants. As previously explained, the Employment Agreement broadly prohibited him from providing “similar” services to Vivex that he provided to DB.  The Operating Agreement covenant was even broader. Thus, McQueen could have breached these covenants even without actually using or disclosing DB’s confidential information or trade secrets.“
• “[T]he district court could have found the presumption rebutted by Vivex’s evidence that McQueen was not in fact competing with DB through his work for Vivex.”

No. 22-50442 (April 3, 2023).

The abortion-medication opinion has been issued, staying the FDA’s approval of mifepristone, and staying itself for seven days to allow appeal.

Without reference to the Federalist Papers or the records from the Constitutional Convention, the Fifth Circuit held in Consumers’ Research v. FCC that the six criteria in 47 U.S.C. § 254(b) gave the FCC “intelligible principles” to guide its regulation of communication, unlike the “total absence of guidance” identified last year in Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022). No. 22-60008 (March 24, 2023).

The original panel opinion in Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted), said that in federal court “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state,” but in state court, “[t]he Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking ….” Devillier v. State of Texas, No. 21-40750 (Nov. 28, 2022) (footnotes omitted).

The panel revised its opinion in January to say only: “The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state, we VACATE the district court’s decision and REMAND for further proceedings. Nothing in this opinion is intended to displace the Supreme Court of Texas’s role as the sole determinant of Texas state law.” A detailed footnote described the Texas Supreme Court’s holdings in this area.

An en banc vote proceeded, which produced an 11-5 vote against rehearing, released on March 23, 2023:

Following Pepi Corp. v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied.), the Fifth Circuit summarized when a quantum meruit claim could be pursued even when an express contract applies:

“First, recovery in quantum meruit is allowed when a plaintiff has partially performed an express contract but, because of the defendant’s breach, the plaintiff is prevented from completing the contract. …

Second, “[r]ecovery in quantum meruit is sometimes permitted when a plaintiff partially performs an express contract that is unilateral in nature.” [and]

Third, “a breaching plaintiff in a construction contract can recover the reasonable value of services less any damages suffered by the defendant if the defendant accepts and retains ‘the benefits arising as a direct result of the plaintiff’s partial performance.’”

Credos Indus. Supplies & Rentals, LLC v. Targa Pipeline Mid-Cont. WestTex, LLC, No. 22-20480-CV (March 24, 2023).

The en banc Fifth Circuit affirmed a nationwide injunction against President Biden’s federal-employee vaccine mandate, concluding that the relevant statute did allow federal jurisdiction over such issues. The breakdown of opinions in Feds for Medical Freedom v. Biden is as follows:

In a dissent from a dismissal order in Chapman v. Doe, Justice Jackson questioned whether the Supreme Court had become too quick to vacate judgments, noting, inter alia, that “our common-law system assumes that judicial decisions are valuable and should not be cast aside lightly, especially because judicial precedents ‘are not merely the property of private litigants,’ but also belong to the public and ‘legal community as a whole.'” (reviewing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).

As she was the sole dissenter on this point, her views are apparently not shared by a majority of that court, but her analysis is still thought-provoking and deserves study, as it examines a part of the appellate process that often goes largely unnoticed. Thanks to Ben Taylor for drawing my attention to this one!

Last year the Fifth Circuit held that the Consumer Financial Protection Bureau was funded through an unconstitutional mechanism that circumvented the Congressional appropriations process. That matter is now before the Supreme Court. The Second Circuit has now joined the fray in CFPB v. Law Offices of Crystal Moroney, P.C., No. 20-3471 (March 23, 2023), joining the D.C. Circuit in finding that the CFPB’s funding mechanism does not violated the Appropriations Clause.

Majestic Oil v. Certain Underwriters at Lloyd’s is an insurance coverage case in which the key issue is what caused a roof to leak. The plaintiff’s expert prepared a second report that added analysis of certain weather data; he characterized it as a permissible supplement to his original report, while the defense moved to strike it as containing an impermissible new opinion after the expert-report deadline.

The Fifth Circuit reversed the trial court’s ruling that struck the new report, remanding for more fulsome consideration of all four factors identified by Fed. R. Civ. P. 37(c)(1): “(1) the explanation for the failure to identify the [information]; (2) the importance of the [information]; (3) potential prejudice in allowings the timeliness of an expert report and the [information]; and (4) the availability of a continuance to cure such
prejudice.” No. 21-20542 (March 17, 2023, unpublished).

In a case about a school district’s liabilty for a student’s assault of another student, the Fifth Circuit declined to recognize a “state-created danger” exception to district officials’ immunity. The Court summarized:

     The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” “The Due Process Clause . . . does not, as a general matter, require the government to protect its citizens from the acts of private actors.” We have recognized just one exception to this general rule: “when [a] ‘special relationship’ between the individual and the state imposes upon the state a constitutional duty to protect that individual from known threats of harm by private actors.” However, “a number of our sister circuits have adopted a ‘state-created danger’ exception to the general rule, under which a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries that result.” … 

     The problem for [Plaintiff] is that “the Fifth Circuit has never recognized th[e] ‘state-created-danger’ exception.” In our published, and thus binding, caselaw, “[w]e have repeatedly declined to recognize the statecreated danger doctrine.” For this reason, [Plaintiff] “ha[s] not demonstrated a clearly established substantive due process right on the facts [she] allege[s].” The district court thus erred in denying qualified immunity to Appellants.

Fisher v. Moore, No. 21-20553-CV (March 16, 2023) (footnotes omitted).

My home city of Dallas was founded with the hope of becomging an inland port, using the Trinity River to connect North Texas with the Gulf of Mexico. Unfortunately, the Trinity turned out to be essentially unnavigable.

Lacking any navigable waters of my own, I am fascinated by opinions that define the “navigable waters” of the United States such as Newbold v. Kinder Morgan SNG Operator LLC. A fishing boat in the D’Arbonne National Wildlife Refuge ran into an underwater object; the case-dispositive issue was choice of law. If the accident did not occur in “navigable waters,” then Louisiana law controlled and the plaintiff would have no claim.

While the boat was, in fact, navigating at the time of the allision, the test excludes “recreational fishing” activity. The Fifth Circuit reviewed the relevant factors and found that the area the boat was in was not “navigable water” governed by federal law:

“[T]he location of the allision is on land that is dry 67 percent of the time, where vegetation is not destroyed and the land is not bare, as evidenced by the need to mow it with some regularity. More significantly, the Bayou D’Arbonne does have an ‘unvegetated channel’ which is some 597 feet wide at the location where the boat split off to fish near the sign. The sign was located 58 feet away from the unvegetated channel. The unvegetated channel is a neat, natural line by which the ordinary high-water mark may be established. Within the channel, there is no vegetation; outside of it, there is.” 

No. 22-30416 (March 14, 2023).

An unfortunate incident involving out-of-hand heckling of Judge Duncan at Stanford Law School, compounded by an administrator fanning the flames, led to an apology from Stanford’s president. Aside of general problems with good manners and common sense, this sort of thing isn’t even good protesting; cf. Tinker v. Des Moines ISD, 393 U.S. 503 (1969) (protecting “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners”).

New England Construction complained that large lumber companies monopolized the wood-products marked during the COVID-19 pandemic. Unfortunately for its claim, however, it only purchased the defendants’ lumber through intermediates (Lowes, Home Depot, etc.). It thus had no standing under the Illinois Brick line of authority, and the Fifth Circuit affirmed the dismissal of its claims. New England Construction, LLC v. Weyerhaeuser Co., No. 22-60329 (March 8, 2023) (unpublished).

Dream Medical Group v. Old South Trading Co. reminds how hard it is to challenge the merits of an arbitration award.

Dream Medical bought medical face masks from Old South. They had a contract dispute that went to arbitration with the AAA. Dream Medical won and Old South opposed confirmation.

Among other arguments, Old South complained that its fraudulent-inducement claim was mishandled, in that the panel violated a AAA rule by not fully considering Old South’s fraudulent-inducement claim, and thus came within the FAA’s provision about arbitrators who “exceeded their powers.”

The Fifth Circuit rejected that argument as an invitation for us to reasses the merits of the Panel’s decision.” It also noted that “manifest disregard of the law” is not a viable, nonstatutory basis for opposing confirmation under Fifth Circuit precedent. No. 22-20286 (March 6, 2023) (unpublished).

The Fifth Circuit updated its panel opinion in United States v. Rahimi. The holding  remains the same (that the federal law, criminalizing the possession of a firearm by someone subject to a domestic violence protective order, violates the Second Amendment), but the majority opinion adds explanation about what its holding does, and does not, affect. No. 21-11001 (March 2, 2023) (withdrawing and substituting prior opinion).

While I wrote an op-ed in the Dallas Morning News about the original opinion, noting that the Fifth Circuit had found the same statute constitutional under the pre-Bruen Second Amendment framework, I had not fully grasped the contrast until reading the revised opinion. The Fifth Circuit’s previous opinion turned on “means-end scrutiny” — in other words, a comparison of benefit and burden. The present opinion thus finds this law unconstitutional (as it must under its analysis of Bruen) even though Circuit precedent says that the law did not unduly burden gun rights when compared to the law’s policy objectives. It thus provides a particularly stark example of the impact of Bruen‘s history-only framework on the law in this area.

The poem Antigonish begins:

Yesterday, upon the stair,
I met a man who wasn’t there
He wasn’t there again today
I wish, I wish he’d go away.

In that spirit, the majority and concurrence in Mexican Gulf Fishing Co v. U.S. Dep’t of Commerce, No. 22-30105 (Feb. 23, 2023), disagreed about the continuing viability of Chevron.

The case presented a dispute about the authority of the Commerce Department, under a Congressional mandate to conserve the nation’s offshore fisheries, to require charter boats to carry a GPS-location device and submit specified records about fishing  activity.

3-0, the Fifth Circuit concluded that the government had exceeded its boundaries. The majority used a Chevron approach to the relevant statute; a concurrence joined but argued that recent Supreme Court cases have tacitly overruled Chevron, and the third judge joined specific parts of the majority opinion.

Colorfully, the majority and concurrence disputed whether Chevron is fairly called the “Lord Voldemort of administrative law,” due to the Supreme Court’s unwillingness to refer to it recent administrative-law opinions. While that’s witty and good fun, the lack of clear guidance from the Supreme Court about this fundamental doctrine is clearly a problem–as this very opinion shows, since three judges approached the same issue in three different ways under the current state of the law. If the Supreme Court wants to overrule Chevron, it should overrule Chevron. 

Celebrate Mardi Gras with Emeril’s chicken and andouille gumbo recipe!

The Fifth Circuit didn’t bite on a last-minute attempt to stop a trial in the Allen Stanford litigation, denying a mandamus petition (with memorable language obviously written by Judge Higginbotham despite the “per curiam” designation):

This case is, at minimum, complex, featuring myriad fact-specific issues litigated over the course of nearly a decade and a half through multiple courts. Halting the litigation’s momentum mere days before trial is set to begin would require indisputable clarity as to its necessity. Here, no such need is evident; assisted by able briefing and a review of the record, we are unpersuaded that either petition reaches the high demands of mandamus, or that the movant has satisfied the similar burden of staying the trial….

The four most powerful words from the lips of a United States District Judge are simply “Call your first witness,” and the veteran presiding judge will so state in a few short days.

In re Toronto-Dominion Bank, No. 22-20648 (Feb. 14, 2023). (It could be debated whether those are in fact a trial judge’s most powerful words–a case could be made for “So ordered” or “Your objection is overruled,” for example.)

A case now pending in the Amarillo Division of the Northern District of Texas challenges the FDA’s approval of one of the drugs commonly used to carry out a “medication abortion,” including a question whether the 19th-Century Comstock Act prohibits the mailing of abortion-related medication.  A decision is expected after preliminary-injunction briefing closes on February 24. This is the plaintiffs’ brief in support of a preliminary injunction, and this is the defendants’ response.

On Wednesday at noon, I am doing a virtual CLE for the Dallas Bar that reviews the key cases, since last spring, from the U.S. Court of Appeals for the Fifth Circuit and the Fifth Court of Appeals in Dallas. You can register here and you can download (subject to last-minute revisions) my PowerPoint here. I hope you can join me!

Last week’s opinion in United States v. Rahimi found that a federal law, criminalizing the possession of a firearm by someone under a domestic-violence restraining order, violated the Second Amendment’s protection of a right to bear arms.

The Attorney General plans to seek review. The perspective of a Dallas-based operator of a women’s shelter appears in this Fox 4 news story on the case. I recently wrote an op-ed about the opinion in the Dallas Morning News. A flavor of the national  commentary about the case can be obtained from these representative articles in Slate and Reason.

Referring to a federal law that prohibits firearm ownership by someone subject to a domestic-violence restraining order, the Fifth Circuit holds in United States v. Rahimi:

“Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.

No. 21-11001-CR (Feb. 2, 2023) (citation omitted).

The plaintiffs in Elson v. Black brought a putative class action against the manufacturers of the “FasciaBlaster, a two-foot stick with hard prongs that is registered with the Food and Drug Administration as a massager,” alleging that they “falsely advertised that the FasciaBlaster was able to ‘virtually eliminate cellulite,’ help with weight loss, and relieve pain.” The Fifth Circuit affirmed the dismissal of those class claims, noting that class-wide issues did not predominate:

1. Law. “[V[ariations in state law here ‘swamp any common issues and defeat predominance'” as to reliance and other basic matters; and
2. Fact. “Plaintiffs’ allegations introduce numerous factual differences that in no way comprise a coherent class. … [T]he named plaintiffs do not complain about the same alleged misrepresentations. Some are disgruntled because they expected the FasciaBlaster to reduce cellulite. Others are dissatisfied because they expected it to reduce their pain or address certain health concerns. And others are displeased because they expected it to help them lose weight. … Moreover, even within these groups, the possibility of class analysis disintegrates because the members did not rely on the same alleged misrepresentations.”

No. 21-20349 (Jan. 5, 2023).

Thanks to diversity jurisdiction, the Fifth Circuit reviews some fundamental state-law tort issues along with its loftier docket of constitutional disputes.

In Badeaux v. Louisiana-I Gaming, Badeaux sued for damages after he tripped over a sprinkler head at a casino. The Fifth Circuit affirmed summary judgment for the casino because the sprinkler head was “open and obvious,” noting, inter alia: “There are multiple photographs of the scene showing that: (1) there were working lights in the parking lot on the night of Badeaux’s fall; (2) the sprinkler head was located in a grassy, landscaped area that was separated from the parking lot by a raised curb; and (3) the raised curb surrounding the sprinkler head was painted bright yellow.”

No. 21-30129 (Jan. 20, 2023).

On January 29, the Washington Post published a lengthy article about issues of the day in the Fifth Circuit.

Significantly different and tone and focus, it is similar in scope to a Texas Monthly article of last summer about the Court.