Amawi v. Paxton, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50384

BAHIA AMAWI

Plaintiff - Appellee

v.

KEN PAXTON, in his official capacity as Attorney General of Texas,

Defendants - Appellants

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JOHN PLUECKER; OBINNA DENNAR; ZACHARY ABDELHADI;
GEORGE HALE;

Plaintiffs - Appellees

v.

BOARD OF REGENTS OF THE UNIVERSITY OF HOUSTON SYSTEM;
TRUSTEES OF THE KLEIN INDEPENDENT SCHOOL DISTRICT;
TRUSTEES OF THE LEWISVILLE INDEPENDENT SCHOOL DISTRICT;
BOARD OF REGENTS OF THE TEXAS A&M UNIVERSITY SYSTEM,

Defendants - Appellants

Appeals from the United States District Court
for the Western District of Texas

United States Court of Appeals
Fifth Circuit
FILED
April 27, 2020

Lyle W. Cayce
Clerk
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Before JOLLY, JONES, and ENGELHARDT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal touches on the Israeli-Palestinian conflict. In 2017, Texas
enacted a law that forbids its governmental entities from contracting with
companies who engage in economic boycotts of Israel. The plaintiffs, who
support the Palestinian side of the conflict, then brought two separate suits for
declaratory and injunctive relief in federal district court, alleging that
requiring “No Boycott of Israel” clauses in Texas government contracts violates
the First Amendment. After the two suits were consolidated, the district court
held that the plaintiffs were likely to succeed on the merits of their claims that
the First Amendment prohibited Texas’s “No Boycott of Israel” certification
requirement. The district court then preliminarily enjoined the enforcement
of “No Boycott of Israel” clauses in all contracts with Texas governmental
entities. Whether that ruling was correct has been the subject of wide and
intense debate, as demonstrated by the fourteen amicus briefs filed in this
appeal.
This opinion will not address that debate, however. Instead, we have
decided that this appeal is moot because, twelve days after the district court’s
ruling, Texas enacted final legislation that exempts sole proprietors from the
“No Boycott of Israel” certification requirement. The plaintiffs are all sole
proprietors. Because they are no longer affected by the legislation, they lack a
personal stake in the outcome of this litigation. This case is thus moot, and we
VACATE the preliminary injunction order. Further, we REMAND the case to
the district court to enter an appropriate judgment dismissing the complaints.
I.
A.
With the following background, we begin our discussion that leads us to
vacate and remand. In 2017, Texas enacted House Bill 89 (H.B. 89), which
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prohibits the state’s governmental entities from contracting with companies
that “boycott Israel.” H.B. 89 provides:
A governmental entity may not enter into a contract with a
company for goods or services unless the contract contains a
written verification from the company that it:
(1) does not boycott Israel; and
(2) will not boycott Israel during the term of the contract.
Tex. Gov’t Code § 2271.002(b). At the time of H.B. 89’s enactment, Texas
defined “company” to include “a for-profit sole proprietorship.” Tex. Gov’t Code
§ 808.001(2).
Bahia Amawi, John Pluecker, Zachary Abdelhadi, Obinna Dennar, and
George Hale are members of the BDS
1
movement, which is a Palestinian-led
movement that seeks to put economic pressure on Israel to change its
treatment of Palestinians. As sole proprietors, they allege that they have been
adversely affected by H.B. 89. Amawi’s experience is representative. Amawi
is a speech pathologist who is fluent in English and Arabic. For nine years,
Amawi contracted with Pflugerville Independent School District to conduct
speech therapy and early childhood evaluations. In September 2018,
Pflugerville sent Amawi an addendum to her renewal contract, which required
her to affirm that she “(1) [d]oes not currently boycott Israel; and (2) [w]ill not
boycott Israel during the term of the contract.” Amawi refused to sign the
contract addendum, and thus, her speech language pathology services to
Pflugerville were terminated. Amawi states that she could not sign the
contract addendum in good faith because she is a Muslim of Palestinian origin
who “support[s] peaceful efforts to impose economic pressure on Israel, with
the goal of making Israel recognize Palestinians’ dignity and human rights.”

1
BDS is an acronym that derives its name from the organization’s objectives: boycotts,
divestment, and sanctions.
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B.
On December 16, 2018, Amawi sued Pflugerville and Texas Attorney
General Ken Paxton, alleging that H.B. 89 is unconstitutional because non-
violent boycotts are entitled to protection under the First Amendment. Two
days later, Pluecker, Dennar, Abdelhadi, and Hale filed suit against Paxton,
The Boards of Regents of the University of Houston and Texas A&M University
Systems, and the Trustees of the Lewisville and Klein Independent School
Districts, challenging H.B. 89 on First Amendment grounds. Soon after filing
suit, both sets of plaintiffs moved to preliminarily enjoin H.B. 89’s enforcement
and the inclusion of “No Boycott of Israel” certifications in state contracts. The
district court then consolidated the two cases, and they remain consolidated on
appeal.
Except for Pflugerville, which was unopposed to the proposed
injunction,
2
the defendants responded to the motions for preliminary
injunction and moved to dismiss the case. On April 25, 2019, the district court
denied the motions to dismiss and granted the plaintiffs’ motions for
preliminary injunction, holding that the plaintiffs were likely to succeed on the
merits of their claims that H.B. 89 is an unconstitutional regulation of speech.
The district court then entered the following preliminary injunction:
Defendants, and their officers, agents, servants, employees,
attorneys, and those persons in active concert or participation with
them who receive actual notice of this Order, are preliminarily
ENJOINED from enforcing H.B. 89, codified at Tex. Gov. Code
§ 2270.001 et seq., or any “No Boycott of Israel” clause in any state
contract.
On April 29 and May 2, the defendants timely appealed the preliminary
injunction order.

2
Amawi has since voluntarily dismissed Pflugerville from this suit, and it is not a
party to this appeal.
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C.
On May 7, twelve days after the district court’s entry of the injunction,
Texas Governor Greg Abbott signed House Bill 793 (H.B. 793) into law. As we
have noted, H.B. 793 amended H.B. 89’s definition of “company” by excluding
sole proprietorships from its coverage. See Tex. Gov’t Code § 2271.001(2). The
law further revised H.B. 89 by providing that the anti-boycott certification
requirement is now limited to government contracts with “compan[ies] with 10
or more full-time employees” and that “ha[ve] a value of $100,000 or more.”
Tex. Gov’t Code § 2271.002(a).
On May 28, a panel of this court stayed the preliminary injunction. On
November 6, the plaintiffs asked this court to allow them to supplement the
record on appeal with declarations they filed in the district court after the
defendants noticed this appeal. In their motion, the plaintiffs contended that
these declarations demonstrate that H.B. 89 is being applied to sole proprietors
even after H.B. 793’s enactment. On November 18, a member of this court
denied the motion. The district court subsequently stayed its proceedings
pending this appeal.
II.
Wrestling with the merits of this case can become rather complex. But,
as it turns out, this appeal can be decided in a straightforward manner. Our
analysis focuses on these essential facts. All plaintiffs are sole proprietors, who
were covered under H.B. 89 when the district court entered its preliminary
injunction order. See Tex. Gov’t Code § 808.001(2). Texas has now enacted an
amendment to H.B. 89 that completely eliminates sole proprietors from the
statute’s coverage. See Tex. Gov’t Code § 2271.001(2). And there is no evidence
that the named defendants have attempted to require or enforce “No Boycott
of Israel” clauses in contracts with sole proprietors after H.B. 793 was enacted.
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In short, H.B. 793’s enactment provided the plaintiffs the very relief
their lawsuit sought, and even assuming that H.B. 89 is unconstitutional, the
defendants can do nothing more to ameliorate their claimed injury. The
plaintiffs’ complaint with the defendants has been resolved, and in their favor.
Consequently, this case is moot; that is to say the parties to this lawsuit have
no case or controversy before the court, and the federal courts are empowered
only to hear cases and controversies. See U.S.
CONST. art. III, § 2.
Of course, we recognize that a defendant’s voluntary cessation of
challenged conduct may fail to render a case moot if the plaintiff’s alleged
injury may arise again.
3
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (noting that a defendant’s voluntary
cessation of challenged conduct renders a case moot only if it is “absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to
recur”). Under the circumstances presented here, it is remote, and indeed
unrealistically speculative, that these defendants will ever again expose the
plaintiffs to the claimed injury that prompted this lawsuit. The very process
of the enactment of H.B. 793 by the state legislature and governor, combined
with the presumption of good faith that we afford government actors,
overcomes concerns of voluntary cessation. See Fantasy Ranch Inc. v. City of
Arlington, 459 F.3d 546, 564 (5th Cir. 2006); Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 325 (5th Cir. 2009).
The plaintiffs have, however, filed declarations in the district court that
refer to two school districts—neither of whom are parties in this case—which
included “No Boycott of Israel” clauses in contracts with sole proprietors after

3
The defendants argue that the voluntary cessation doctrine is inapplicable because
mootness results from the actions of Texas law-making authorities, not from the voluntary
cessation of the defendants’ requiring the “No Boycott of Israel” clauses. We need not address
this argument because, even applying the voluntary cessation doctrine as arising from the
defendants’ conduct, it has no effect on the outcome of this appeal.
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H.B. 793 amended H.B. 89’s requirements. As we have earlier noted, a
member of this court denied the plaintiffs’ request to include these declarations
in the record on appeal. But the plaintiffs insist that these declarations are
re levant to the question of voluntary cessation, so we will address them. Each
of these two incidents occurred in August 2019, approximately three months
after H.B. 793’s enactment. To the extent that these two school districts
continued to apply “No Boycott of Israel” clauses to sole proprietors after H.B.
793’s enactment, they acted ultra vires at worst, or more likely in the mistaken
application of old law.
4
These two stray incidents fail to suggest to us that
Texas would revert to applying H.B. 89’s requirements to sole proprietors if
this suit were dismissed. To the point: the voluntary cessation exception to
mootness does not apply in this case.
Consequently, this appeal is moot and no longer presents a case or
controversy required by Article III as a condition of remaining before us. See
Yarls v. Bunton, 905 F.3d 905, 911–12 (5th Cir. 2018). We thus VACATE the
preliminary injunction and REMAND this case to the district court to enter an
appropriate judgment dismissing the complaints. To be clear, this opinion
leaves only attorney’s fees to be decided on remand.
5

4
Our review of the current policies on the websites of the school districts discussed in
these declarations as well as the websites of the school districts that the plaintiffs have
named as defendants indicate that these school districts now recognize that H.B. 89 no longer
applies to sole proprietors. See Lamar Consolidated Independent School District, Purchasing
and Acquisition, https://pol.tasb.org/Policy/Download/481?filename=CH(Legal).pdf (last
visited April 21, 2020); Katy Independent School District, Purchasing and Acquisition,
https://pol.tasb.org/Policy/Download/594?filename=CH(LEGAL).pdf (last visited Apr. 21,
2020); Klein Independent School District, Purchasing and Acquisition,
https://pol.tasb.org/Policy/Download/595?filename=CH(LEGAL).pdf (last visited Apr. 21,
2020); Lewisville Independent School District, Purchasing and Acquisition,
https://pol.tasb.org/Policy/Download/384?filename=CH(LEGAL).pdf (last visited Apr. 21,
2020).

5
Because we have concluded that this appeal is moot, it has become unnecessary to
address other questions of standing and sovereign immunity raised by several of the
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VACATED and REMANDED.

defendants. See McCorvey v. Hill, 385 F.3d 846, 848 (5th Cir. 2004). That is not to say,
however, that these matters are precluded from the district court’s consideration when it
determines the matter of attorney’s fees.

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