The Fifth Circuit Vacates an Injunction After an AI-Assisted Order Cites Invented Evidence in Jackson Federation of Teachers v. Fitch
On October 22, 2026, the Fifth Circuit vacated a preliminary injunction against Mississippi’s law restricting diversity, equity, and inclusion activities in public education and directed that the case be assigned to a different district judge. The proceedings in Jackson Federation of Teachers v. Fitch had produced an AI-assisted temporary restraining order that attributed testimony to people who had supplied no such declarations, described events unsupported by the record, and cited documents that did not say what the order represented. Although the appellate court also identified independent errors in the legal analysis, the district court’s reliance on invented testimony created a separate problem concerning the factual basis for its exercise of judicial power. When a court discovers that its order relied on testimony that was never given, it should explain what evidence actually supports any relief it continues to impose.[1]
The factual discrepancy becomes apparent when the original order is placed beside the documents it cited. In granting temporary relief on July 20, 2025, District Judge Henry Wingate purported to describe declarations from four people whose accounts reinforced his assessment of the threatened harm. The order attributed the suspension of LGBTQ+ programming to Brandy Williams, described the effective dissolution of the Fannie Lou Hamer Institute through Leslie-Burl McLemore, and reported halted diversity training and severed institutional partnerships through Rhea Bishop and Natalie Collier. Each account came with a docket citation. A reader encountering those passages would understand that the court had examined those declarations and was explaining their significance to the requested relief.[2]
The cited docket entries existed. Their contents established the discrepancy. The document identified as Williams’s declaration was a declaration for Women in Science and Engineering, signed by its president, Carmen Dunn. The document attributed to McLemore was Barbara Phillips’s declaration. The remaining two were declarations by D’Andra Orey and Cliff Johnson. Those documents addressed the organizations’ activities, the educators’ work, and their concerns about the law. They did not contain the four accounts recited in the order. As the defendants explained in their motion to correct it, both the identities and the substance of the supposed testimony differed from the cited material.[3]
This comparison also limits what can fairly be said about the plaintiffs’ case. They had submitted evidence. The Women in Science and Engineering declaration, for instance, described concern about university funding and a decision to pause fundraising for a fall conference. Whether that evidence established the requirements for relief was a question for the court to decide under the governing law. Substituting a different person’s supposed experience changed the evidence on which the court appeared to make that decision. The plaintiffs were entitled to have their actual submissions evaluated without having to defend accounts that the court had attributed to other people.[4]
The placement of the invented material within the order makes it difficult to dismiss the problem as an inaccurate recital of background. Under its discussion of the balance of harms, the court expressly described the four accounts as additional affidavits reinforcing its conclusion. It then treated those accounts as demonstrating the breadth of the law’s chilling effect and the continuing deprivation of constitutional rights. Elsewhere, unsupported descriptions of canceled programs appeared in the standing analysis, while unsupported descriptions of instructional restrictions and a canceled program appeared in the discussion of irreparable harm. The order thus supplied its own explanation of the work these assertions were doing.[5]
That explanation establishes reliance in the court’s stated reasons. It does not establish that every invented assertion was indispensable to the result or that the genuine record could support no injunction. Those further propositions would require their own analysis. The immediate problem was that the order presented a factual basis for relief that the cited sources did not provide. The question for a reviewing court was whether the genuine evidence could support the relief and whether the reasons given made that relationship sufficiently clear after the unsupported material was removed.
The procedural history compounded that problem. The defendants moved to clarify or correct the order two days after it was entered. The original was subsequently removed from its docket entry and replaced. When the defendants sought to have the original restored as a superseded order, the district court declined. The defendants had preserved a copy as an exhibit to their motion, which allowed the appellate court to examine the document that had initially supplied the reasons for relief. Without that preserved version, the extent of the changes and the relationship between the original reasons and the corrected order would have been more difficult to assess.[6]
The corrected temporary restraining order substituted discussion of actual submissions for the four invented accounts. The court then held an evidentiary hearing on August 5 and 6 before issuing the preliminary injunction on August 18. Those intervening steps must be considered in assessing the later decision. The four deleted accounts were no longer recited in the corrected order. The appellate majority’s criticism concerned the unexplained treatment of the original errors, the defects that persisted, and the legal analysis on which the later injunction rested.[7]
Judge Wingate later supplied an explanation for how the mistakes occurred. In an October 21, 2025, letter to the director of the Administrative Office of the United States Courts, responding to Senator Chuck Grassley’s inquiry, he said a law clerk had used Perplexity to synthesize publicly available docket information. According to the letter, an early draft bypassed the ordinary review process and was docketed by mistake. He attributed the errors to a lapse in human oversight and described additional review measures. He also maintained that the inaccuracies did not concern the core legal reasoning or the ultimate judgment on the merits.[8]
Even accepting that the draft was docketed by mistake, that explanation addresses how an unreliable draft became an order. The effect of its contents requires a separate inquiry. A document can be filed accidentally and still govern the parties while it remains in force. A judge can intend to reach a conclusion on valid grounds and still issue an order that states invalid grounds for reaching it. Because the original order expressly used the invented accounts to reinforce its analysis, the assertion that those accounts did not affect the result needed to be demonstrated through the reasoning that survived their removal. The Fifth Circuit majority criticized the district court’s failure to provide that explanation.[9]
The governing law already accommodates the conditions under which emergency relief is sought. A preliminary-injunction proceeding need not replicate a completed trial. In Sierra Club, Lone Star Chapter v. Federal Deposit Insurance Corp., the Fifth Circuit recognized that a court may proceed informally and consider material, including hearsay, that would not be admissible in the same form at trial. It nevertheless required a record supporting the decision. The same opinion explained the importance of findings that permit appellate review, a requirement reflected in Rule 52(a)(2) for orders granting or refusing interlocutory injunctions.[10]
These principles allow a court to act on evidence before the parties have completed discovery. They still require an identifiable relationship between the material before the court and the findings used to justify its action. A declaration may be disputed, incomplete, or entitled to little weight. Those characteristics can be examined by reference to an actual statement and its source. A purported declaration that was never submitted cannot be assessed on those terms. The opposing party must first expose the mismatch before the court can return to evaluating what the evidence actually submitted supports.
Judicial notice supplies no general answer to that defect. Rule 201 permits a court to notice certain adjudicative facts on its own, but limits that procedure to facts that are not reasonably disputable under the rule’s specified grounds. It also provides an opportunity to be heard on timely request. Judicial notice under this rule concerns the facts of the particular dispute. Legislative facts that inform broader legal reasoning lie outside its scope. Whether a particular institution canceled a particular program because of a particular statute is a claim about what occurred in the case. Assigning that claim to a nonexistent declaration does not establish a lawful basis for taking it as true.[11]
The larger concern is the ability of the people affected by an adjudication to know and contest its factual basis. In Ohio Bell Telephone Co. v. Public Utilities Commission, a state commission relied on information that it did not disclose to the company whose property interests its order affected. The Supreme Court held that the company had been denied a fair hearing when it could not examine or rebut the material used against it. That case involved a state administrative proceeding and the Fourteenth Amendment. Its relevance here is the relationship it identifies between an ascertainable factual basis, an opportunity to respond, and meaningful review.[12]
The analogy does not establish that Fitch decided a separate due-process claim or that every AI error produces a constitutional violation. It explains the institutional consequence of allowing generated assertions to acquire authority through an adjudicative decision. Once an order presents an assertion as a finding supported by testimony, the affected party must challenge a factual account that the court has already adopted. The practical burden includes discovering the discrepancy, documenting it, and asking the decisionmaker to reconsider a conclusion expressed in the decisionmaker’s own words. The opportunity to respond is impaired to the extent that the supposed evidentiary foundation cannot be located or the court declines to explain what remains of its reasoning after the error is shown.
The strongest objection to requiring further proceedings is that a corrected order may reach the same result on sufficient evidence. Requiring the parties to relitigate matters unaffected by the mistake could impose expense and delay without improving the decision. Rule 61 recognizes the importance of disregarding errors that do not affect substantial rights. Sierra Club likewise recognizes that an exceptionally clear record may permit appellate review despite missing findings when a remand would serve no useful purpose. A sensible response to fabricated material must preserve those principles. The presence of an invented sentence, considered without regard to its function in the decision or the remaining record, cannot answer every question about the appropriate remedy.[13]
But harmlessness requires a basis for concluding that the error was harmless. Where an order says that particular affidavits reinforce its assessment of harm, the court should identify the genuine evidence supporting the retained findings and explain why the relief remains warranted. If the same result follows from a different factual basis, the explanation should make that change apparent. Otherwise, the parties are asked to accept the continued exercise of judicial power without being told how the reasons originally given for that exercise can be removed while the conclusion remains in place.
In Fitch, the attempted corrections also failed to eliminate all fabricated material. The Fifth Circuit identified a nonexistent Fourth Circuit decision, Cousins v. School Board of City of Norfolk, in the corrected temporary restraining order. The later preliminary-injunction order generally incorporated the earlier order’s discussion and analysis. The appellate majority therefore confronted both the unresolved explanation for the original factual fabrications and a legal fabrication that persisted through the correction process. Its reassignment analysis addressed the appearance of impartiality and the difficulty of obtaining fresh consideration under those circumstances.[14]
The disposition should be described with the same care demanded of the district court’s work. The Fifth Circuit vacated the preliminary injunction and ordered reassignment for further proceedings. Its majority also identified independent defects in the treatment of the facial challenge, the plaintiffs’ burden, and the scope of relief. Judge Catharina Haynes concurred only in the final disposition paragraph. The decision accordingly supplies neither a final resolution of every constitutional application of Mississippi’s law nor a general rule that judicial use of AI automatically requires reassignment.[15]
The response I would require when a court discovers material fabrication in an issued order follows from the work needed to make the decision reviewable. The original order should remain accessible as a clearly identified superseded version. The corrected order should identify the affected factual propositions and explain which findings are withdrawn, which remain, and what genuine sources support those that remain. Where the correction introduces or materially changes a basis for relief, the parties should receive an appropriate opportunity to address it. The court should then explain whether the relief survives and why. I propose these steps as a safeguard for restoring an intelligible decision. The cases discussed here have not prescribed them as an AI-specific procedure.
The same comparison should occur before an order is issued. Confirming that a docket number exists verifies only the location of a document. The reviewer must also determine who supplied the document, what the cited passage actually says, and whether it supports the precise proposition for which the draft relies on it. That examination would have exposed the mismatch between the four descriptions in the original order and the four declarations to which they purported to refer. It would also have preserved the distinction between the plaintiffs’ evidence and the court’s conclusions about that evidence.
For the parties, the consequences extend beyond the correction of a document. A plaintiff who has submitted genuine evidence can lose interim protection while the litigation is diverted into an examination of the court’s unsupported additions. A defendant can be subjected to relief supported in the issued order by events that were never established. To the extent that the proceedings become occupied with identifying and correcting those additions, both sides must devote resources to recovering a reliable account of the dispute before the court can return to deciding it. The obligation to identify the evidence and explain its legal significance protects each of them. A court that has relied on invented evidence should undertake that work openly, so that any relief it continues to impose can be evaluated on the case the parties actually presented.
[1] Jackson Fed’n of Tchrs. v. Fitch, No. 25-60496, slip op. at 3–15, 27 (5th Cir. Oct. 22, 2026) (describing factual and legal fabrications, identifying independent legal errors, and vacating the preliminary injunction with instructions to reassign the case), opinion.
[2] Temporary Restraining Order at 14–15, Jackson Fed’n of Tchrs. v. Fitch, No. 3:25-cv-00417 (S.D. Miss. July 20, 2025), preserved in ECF No. 58-1, at 16–17 (filed July 28, 2025) (attributing four accounts of institutional harms to declarations identified as ECF Nos. 11-1 through 11-4), preserved original order.
[3] Defendants’ Unopposed Motion to Clarify/Correct Order ¶ 3(h), at 4, Jackson Fed’n of Tchrs., No. 3:25-cv-00417 (S.D. Miss. July 22, 2025), ECF No. 54 (identifying the four actual declarants and the substantive mismatch), motion. Declaration of Women in Science and Engineering at 1–3, Jackson Fed’n of Tchrs., No. 3:25-cv-00417 (S.D. Miss. June 18, 2025), ECF No. 11-1 (describing the organization’s activities and anticipated injuries), declaration. Declaration of Barbara Phillips at 1–2, Jackson Fed’n of Tchrs., No. 3:25-cv-00417 (S.D. Miss. June 18, 2025), ECF No. 11-2 (describing concerns about teaching and professional obligations), declaration. Declaration of D’Andra Orey at 1–3, Jackson Fed’n of Tchrs., No. 3:25-cv-00417 (S.D. Miss. June 18, 2025), ECF No. 11-3 (describing concerns about teaching and research), declaration. Declaration of Cliff Johnson at 1–3, Jackson Fed’n of Tchrs., No. 3:25-cv-00417 (S.D. Miss. June 18, 2025), ECF No. 11-4 (describing concerns about clinical teaching and professional obligations), declaration.
[4] Declaration of Women in Science and Engineering, supra note 3, ¶ 6, at 3 (describing uncertainty over university funding and the pause in conference fundraising).
[5] Temporary Restraining Order, supra note 2, at 7–8, 12, 14–15 (using unsupported events in the standing and irreparable-harm analyses and the four purported affidavits in the balance-of-harms analysis). Defendants’ Unopposed Motion to Clarify/Correct Order, supra note 3, ¶ 3(d), (e), and (h), at 3–4 (identifying the absent factual support).
[6] Jackson Fed’n of Tchrs., No. 25-60496, slip op. at 5–8 & n.7 (recounting replacement of the original order, the refusal to restore it, and its preservation in the defendants’ exhibit).
[7] Corrected Temporary Restraining Order at 12–13, Jackson Fed’n of Tchrs., No. 3:25-cv-00417, preserved in ECF No. 58-7 (filed July 28, 2025) (substituting discussion of WiSE and Clifford Boler for the four accounts), corrected order. Order at 3–4, 17, Jackson Fed’n of Tchrs., No. 3:25-cv-00417 (S.D. Miss. Aug. 18, 2025), ECF No. 74 (recounting the evidentiary hearing and generally incorporating the TRO’s discussion and analysis), preliminary-injunction order. Jackson Fed’n of Tchrs., No. 25-60496, slip op. at 6–15 (examining the original errors, the attempted corrections, and the later injunction).
[8] Letter from Henry T. Wingate, U.S. Dist. J., to Robert J. Conrad, Jr., Dir., Admin. Off. of the U.S. Cts. 1–2 (Oct. 21, 2025) (describing the clerk’s use of Perplexity, the premature docketing of a draft, and the judge’s view of the errors), letter. The date given here follows the signed letter, rather than the October 2 date in the appellate opinion’s footnote 9.
[9] Jackson Fed’n of Tchrs., No. 25-60496, slip op. at 4, 8 & n.10, 14–15 (faulting the unexplained retention of the result after the factual fabrications were identified).
[10] Sierra Club, Lone Star Chapter v. Fed. Deposit Ins. Corp., 992 F.2d 545, 551–52 (5th Cir. 1993) (allowing procedural flexibility while requiring record support and findings sufficient for review), opinion. Fed. R. Civ. P. 52(a)(2) (requiring findings and conclusions supporting the grant or refusal of an interlocutory injunction), rule.
[11] Fed. R. Evid. 201(a)–(e) & advisory committee’s note to subdivision (a) (distinguishing adjudicative and legislative facts and prescribing the grounds and procedures for judicial notice of adjudicative facts), rule and notes.
[12] Ohio Bell Tel. Co. v. Pub. Utils. Comm’n, 301 U.S. 292, 300–05 (1937) (holding that reliance on undisclosed factual material, without an adequate opportunity to examine and rebut it, denied the company a fair hearing), opinion.
[13] Fed. R. Civ. P. 61 (requiring courts to disregard errors and defects that do not affect substantial rights, subject to the rule’s qualification concerning the requirements of justice), rule. Sierra Club, 992 F.2d at 551 (recognizing that an exceptionally clear record may make remand for findings unnecessary).
[14] Jackson Fed’n of Tchrs., No. 25-60496, slip op. at 8–9 nn.13–14, 14–15 (identifying the nonexistent decision, the incorporation of the temporary restraining order’s analysis, and the grounds for reassignment).
[15] Id. at 9–13, 16–27 (explaining the defects in the facial analysis and scope of relief and directing reassignment). Id. at 28 (Haynes, J., concurring) (joining only the final disposition paragraph).