In A&R Engineering and Testing, Inc. v. Scott, (5th Cir., July 10, 2023), the U.S. 5th Circuit Court of Appeals held that a company and its Palestinian owner, both of whom boycott Israel, lack standing to sue the Texas Attorney General in a challenge to Texas' anti-Boycott, Divestment and Sanctions (BDS) Act. The law requires government contracts to include a clause certifying that the contractor does not and will not boycott Israel during the duration of the contract. Plaintiff wanted to renew its long-standing $1.5 million contract with the city of Houston without the anti-BDS clause in it. The court said in part:
[I]t’s unclear how A&R can trace its economic injury to the Attorney General.... Traceability is particularly difficult to show where the proffered chain of causation turns on the government’s speculative future decisions regarding whether and to what extent it will bring enforcement actions in hypothetical cases....
The court said that the anti-BDS statute does not expressly provide a way for the Attorney General to enforce it, and the Attorney General has not taken any action suggesting that he might enforce it. The court went on:
The City told the district court it would follow state law and include the provision. But the City never attributed its actions to any enforcement or threatened enforcement by the Attorney General. A&R’s injury depended on the “unfettered,” “independent” choices of the City ..., so the injury isn’t traceable to the Attorney General.... And A&R does not have standing to sue him.
(See prior related posting.) Jerusalem Post reports on the court's decision.
