Kate Rogers was fired a year ago for comments in her dissertation. See my post about that termination here. It was clear from the get-go that she was fired in violation of her First Amendment and free speech rights. She filed suit and her case is now progressing. You would think at this point that everyone concerned would take some care. But, apparently, they have not.

According to a recent San Antonio Express-News report, the Alamo fund-raising group has tried to keep her from obtaining new employment. In a latter from her lawyer, Ms. Rogers has accused Mark M. Johnson, board chairman of Remember the Alamo Foundation, a fund-raising group, of talking to someone on the board of the Witte Museum.according to the report, Mr. Johnson asked the Witte Museum board member to not hire Kate Rogers. I am sure the lawyers representing Alamo Trust have advised Alamo Trust to not take any action that could be perceived as rep[risal. But, perhaps, the fund-raisers did not get the word?

In any event, such allegations can lead to additional litigation with a new defendant. It is very unwise to engage in such talk in the middle of a lawsuit. In fact, one measure of damages in free speech lawsuits is lost income. Ms. Rogers will surely point to her lost income as a measure of damages if she prevails in her lawsuit. Why would anyone want to make her lost income bigger?

It is probably not surprising that other persons resigned from the board of Remember the Alamo Foundation in response to the firing of Ms. Rogers. Three members quit after she was fired. All three said they were quitting specifically due to Rogers’ termination. Injecting politics into what should e history and community-oriented planning is risky.

See San Antonio Express-News report here for more information.

I wrote about the motion to dismiss submitted regarding Kate Rogers, the former Executive Director of the Alamo Trust here. The motions by the three Defendants struck me as rather weak. The Western District of Texas and Judge Rodriguez appear to agree. The court’s decision ignores the allegation that Ms. Rogers published “highly critical” comments about the Texas Legislature. Instead, the court rightly noted that her dissertation was not speech pursuant to her duties. Her remarks in her paper were those of a private citizen. Ms. Rogers started working on her Ph.d before she was hired by the Alamo Trust. Neither the Alamo Trust nor any other entity helped her pay for her studies. As the court noted, public employees regularly write and publish dissertations, theses and scholarship. The simple fact of their employment does not convert those papers into public speech performed as part of their duties.

Control Over Employment

The court made short work of Lt-Gov. Dan Patrick’s and Land Office Commissioner Dawn Buckingham’s arguments that they had no control over Rogers’ employment. They both made public statements on Twitter/X that certainly indicated they had control. And, they both made public comments in the news media indicating they had some control.

The court also dismissed their arguments that Ms. Rogers was not fired. The court noted, as everyone in the world knows, that an ultimatum to quit or be fired amounts to a termination. It might have been different if Mr. Patrick and Ms. Buckingham had simply commented publicly that they disagreed with Roger’s comments. But, they went beyond that and used their power and influence to remove her from her job.

The court denied the Defendants’ motions to dismiss regarding most of Ms. Rogers’ claims. A motion to dismiss does not address the merits of the case. A Rule 12(b)(6) motion to dismiss simply asks if the plaintiff’s claims hold enough water to justify going forward. The court found most of Ms. Roger’s Complaint does indeed hold enough water to proceed further with her lawsuit. Rogers v. Alamo Trust, Inc. Et Al, No. SA-25-CV-1500 (W.D. tex. Aug. 25, 2026)

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

Force of Arms

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

Trial by Peers

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

Judicial Independence

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

Proportional Sentencing

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

All Free Men

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

I previously wrote about the Department of Homeland Security General Counsel who started an online “Worst of the Worst” list for judges here. It was a very odd and dangerous thing to do. Now, 128 Judges have submitted a bar complaint to James Percival’s bar, the Florida Bar association. The complaint rightly notes this post increases the danger for judges who incur the ire of this administration. The list threatens the rule of law. And, Mr. Percival’s action specifically violates Florida’s Rule 4-8.2(a). That rule bars lawyers from impugning the integrity of judges and officials.

Percival’s list is completely bizarre. It is obviously designed to exert pressure on judges, a pressure that is totally unrelated to the merits of any case. Anytime 128 judges agree on anything, you can be certain that Mr. Percival’s law license is at risk. It never ceases to amaze me how Pres. Trump constantly seems to find lawyers willing to roll the dice with their law licenses. See ABA Bar Journal report here.

When I first started practicing in the Western District of Texas (San Antonio, Austin, El Paso), the courts were overwhelmed by the war on drugs. The war on drugs cranked up in the 1980s and continued through the 1990s. But, the explosion of cases due to immigrants seeking bail is even bigger. In July, 2025, Immigration Customs Enforcement (ICE) issued a new memo that took away the power of immigration judges to set bail for immigrants waiting for their hearings. That one change has resulted in thousands of arrests by ICE. That means tens of thousands of immigrants are not turning to Federal courts and submitting writs of habeas corpus petitions seeking bail from Federal Judges.

For the San Antonio Division of the Western District, we have seen an increase from 201 such filings in the first quarter of 2025 to 2,959 writs in the first quarter of 2026. The San Antonio court typically sees 1,500 civil lawsuits each year. They reached 4,000 by May, 2026. Many of those 4,000 were writs of habeas corpus filed by immigrants.

San Antonio Division

Many of the immigrant detention facilities lie within the geographical boundaries of the San Antonio division. So, we have received the lion’s share of those filings. And, every time, they file such a writ, it is granted and the immigrant is allowed to post a bond. The issue might be different if there was some question whether an immigrant is entitled to bond. But, there is no question. In fact, many of those arrested have long-standing ties to their communities. They have families. They are simply much less likely to skip bail and avoid the judicial process.

In fact, ICE has lost on over 16,000 such submissions. Four-hundred, sixty-nine judges have ruled against the iCE regarding the new bond policy. Fifty-four judges have sided with ICE. Courts have routinely moved to 24 hour staffing. They know that an hour or two may mean the difference between a long-time immigrant getting shipped off to some obscure country or going back to his family.

The previous policy across multiple administrations was to refuse bail only for those immigrants who were brand new to tho this country. Yet, the great weight of judicial opinion is they are in indeed entitled to bail. This explosion of litigation also means that civil lawsuits, which always take a back seat to criminal and immigration related cases, will languish even longer than normal. See Politico news report here.

It is an extraordinary step to take. James Percival, the General Counsel at the Department of Homeland Security, has started posting the names of Federal Judges who, in his view, most frequently oppose DHS deportation efforts. See Fox News story here. If any of us normal private attorneys tried to do that, we would likely soon see our license flying out the window. In his posting, Mr. Percival describes those Judges as the “Worst of the Worst.”

Attacks on Judges are still increasing. Actions like Mr. Percival’s and constant name-calling by the President have eroded the customary respect for Judges. That has resulted in a sharp increase in threats against Judges and their families. The Reuters news service published its findings of over 600 posts on social media between February and May, 2025 targeting the family members of Judges. In March, 2025, Judge James Boasberg ruled that government officials could face contempt charges for illegally deporting immigrants and defying a court order. Within days, online posters attacked his daughter, Katharine Boasberg, who has long been involved in serving low-income communities.

In 2022, Congress passed an act to protect Judges’ personal information. The act was named after Daniel Anderl. Mr. Anderl was the 20 year old son of Federal Judge Esther Salas. Her son was targeted by a former litigant before Judge Salas and killed. For more information, see the ABA Bar Journal report here.

The courts are just starting to grapple with the use of Artificial Intelligence in regard to discovery. Discovery is the critical part of every lawsuit in which one party may “discover” the opposing party’s possible evidence. There is caselaw holding that if a party uses open AI in preparing for litigation, then that party will be deemed to have waived the attorney-client and work-product privileges. In Warner v. Gilbarco, 820 F.Supp.3rd 629 (E.D. Mich. 2026), the defendant sought materials used by the plaintiff in using AI.

ChatGPT

In a straight employment discrimination case, the former employer apparently became convinced the employee used AI in preparing his case. When the defendant deposed the employee, the employer posed an “inordinate” amount of questions to Mr. Warner about his use of AI in preparing for his lawsuit. But, as the court noted, the defendant had no evidence that the plaintiff uploaded or produced confidential documents in violation of the protective order. The defendant, said the court, was engaging in a fishing expedition. The court then flatly told the defendant that its preoccupation with the plaintiff’s use of AI needs to “abate.”

The court pointed out a necessary factor regarding AI: a party may not seek information or documents used by a party when preparing for litigation. For a party to waive the work-product privilege, he must waive that privilege in a way that is likely to “get in an adversary’s hand.” ChatGPT AI is a tool, not a person. Simply using ChatGPT in itself does not waive a privilege. The court does not state so explicitly, but it seems to believe that the plaintiff’s use of ChatGPT was in a closed system, not one that is open to the entire digital universe. See the decision in Warner v. Gilbarco here.

The False Claims Act, 31 U.S.C. §3730(h), provides that a person who reports fraud, waste and abuse with Federal government funds will be protected from retaliation. The False Claims Act is an old statute, passed soon after the U.S. Civil War to prevent government fraud, waste, and abuse. Gabriel Valdez started working for WellMed in 2021 in San Antonio, Texas. Cynthia Hack worked for WellMed a couple of times since 2018 in Dallas. Mr. Valdez and Ms. Hack both reported fraud and kickbacks to their supervisors at WellMed and to United Health Group. When told about illegal use of Federal funds, one supervisor reportedly put his finger in his ears and said, “lalalalalala, I don’t want to hear it.” Eventually, Ms. Hack reported the abuse to the FBI. Both plaintiffs then started receiving poor performance reviews. Hack was forced out in 2023. In 2022, allegations by a third employee found their way into a San Antonio Express-News report. The third employee and Mr. Valdez were then terminated.

Rule 12(b)(6) Motion to Dismiss

WellMed moved to dismiss, saying the Plaintiffs did not plead facts showing a direct loss to the U.S. government. The employer essentially argued that yes, gifts and favors may have been provided, but the plaintiffs cannot show a direct financial loss to the government. And, they argued that Ms. Hack quit. She was not forced out. But, the court rightly noted that WellMed is confusing the issue. To show retaliation, the two employees need only show they were motivated by a concern for mis-use of Federal funds. At this stage of the lawsuit, the issue is whether they pleaded sufficient facts to show the employees were motivated by a concern for Federal money and whether they suffered reprisal for it. The court found they did indeed plead such facts.

If this were a False Claims Act qui tam lawsuit, then yes, the plaintiffs would have to show actual mis-use of Federal funds. But, the retaliation provision only addresses whether the employee was motivated by an actual concern for possible fraud and suffered reprisal for his report.

The court did not address Defendant’s claim that Hack was not fired. Instead, it pointed to other actions that clearly amounted to reprisal: she was passed over for promotion; and she received poor performance ratings.

The court did agree with the employer, United Health Group, that the two plaintiffs did not show an employment relationship with UHC. The motion to dismiss as to UHC was granted. See the decision in Valdez v. WellMed Management, No. 25-CV-00438 (W.D. Tex. Nov. 24, 2025) here.

Courts are starting to impose punishment of sorts not just on the lawyer who submits a brief with AI hallucinations, but also the non-offending lawyer who failed to point out out the hallucinations. In a recent case in the California Court of Appeals, the court sanctioned a lawyer $10,000 for his AI hallucinations. And it denied an award of attorney’s fees to the non-offending lawyer. The non-offending lawyer had asked for the costs of responding to a frivolous appeal. But, the California Court of Appeals said no. It pointed to coursel’s failure to point our fabricated authorities in the plaintiff’s brief.

Another court in Minnesota found it “troubling” that the opposing counsel did not check his opponent’s citations, which turned out to be fictional. The Minnesota court said courts should not be the only line of defense regarding fabricated citations.

See ABA Bar Journal report here.

The Merit Systems Protection Board has existed for decades. It has long served as a place where Federal workers can find some measure of fairness. The MSPB addresses the question of whether a Federal employee has been fired for a fair reason. The MSPB is not particularly pro-employee. But, it serves a vital purpose for the workers who have been fired in violation of civil service rules. As I mentioned in a prior post, Federal workers are indeed held “accountable.” Project 2025 claimed otherwise. But, such a belief is farcical. See my prior post regarding Project 2025 and Federal workers here.

Early in his term, Pres. Trump fired several immigration judges. These are judges who would normally enjoy some protection from capricious or politically based firings. The administration simply cited as authority for the terminations the President’s Article II power under the Constitution. Two of those judges appealed the terminations to the MSPB: Megan Jackler and Brandon Jaroch. In a remarkable decision, the MSPB actually found that it has the authority to decide whether the MSPB has the authority to decide if Jackler and Baroch were entitled to civil service protection. Civil service protections under 5 U.S.C. §7513 do not prevent terminations. The statute simply requires due process, which in turn then imposes a duty on the Agency to document performance problems. Documenting job performance issues is not an onerous requirement. But, it does generally lead to a more professional, non-political workforce.

For decades, the MSPB had specifically refused to consider the constitutionality of its jurisdiction. Such a question represents a conflict of interest for the MSPB. The issue requires the MSPB to consider whether it ought to exist. The MSPB is made up of Federal employees. So, in essence questioning its jurisdiction over certainn workers undermines its own validity. Yet, suddenly in March,2026, it did indeed question its jurisdiction over a major group of Federal employees.

According to the New York Times, the acting chair of the MSPB, Henry Kerner, was called to a meeting with Trump administration officials. According to the Times report, those officials hinted that the MSPB should rule in favor of the administration regarding the two fired immigration judges, Jackler and Baroch. That meeting occurred in November, 2025, just a few months prior to the MSPB’s March, 2026 opinion. In attendance at that meeting with Chairman Kerner was James Sherk. Mr. Sherk has been preaching the false gospel that Federal employees are hard to fire since 2014. See the New York Times report here.

Mr. Kerner was one of two authors of the MSPB decision regarding Jackler and Baroch. If he did indeed meet with a representative of Department off Labor and a person from the White House Counsel’s Office and listened as they discussed a pending case, that would be a clear breach of the ethical rules all lawyers are bound by. Even simply meeting with them suggests the appearance of impropriety.

MSPB Judges not Protected

The MSPB decision dated March 20, 2026 found that immigration judges now qualify as “inferior officers,” such that the MSPB has sufficient authority that Congress cannot limit their removal. The MSPB ruled that simply based on the fact that immigration judges address an area of “significant consequence” for the country, involving foreign relations, the judges are inferior officers not subject to protections. But, as the Lawfare blog points out, this is not a factor that had ever played a role in the prior caselaw. In the few cases on this subject, the concern was the nature of the authority and its framework, not the subject matter.

The problem for this decision is that if it stands, hundreds of senior Federal officials and administrative judges will become subject to overt political pressure. Much of our non-partisan Federal workforce will become partisan. Administrative judges, career attorneys, scientists, IRS auditors would all become subject to the caprice of each changing administration. This decision has been appealed to the Federal Court of Appeals in Washington, D.C. That court has granted a rare en banc review. En banc means all the judges on the court will hear the appeal, not just a three judge panel.

See the Lawfare blog post here.

See the MSPB decision in Jackler and Baroch v. Dept. of Justice, No.. CF-0752-26-0069-1-1 (March 20, 2026) here.