How to get en banc rehearing –

The Fifth Circuit recently granted rehearing en banc in two civil cases – Ariana M. v. Humana Health Services, 853 F.3d 753 (5th Cir. 2017), which reviewed the decisions of an ERISA plan administrator, and In re: Doiron, 849 F.3d 602 (5th Cir. 2017), which addressed whether a contract was “maritime” in nature. The common thread? Both opinions made express appeals to the full court for review:

  • In Ariana, all three panel members who joined in the same opinion also joined in a special concurrence:  “As any sports fan dismayed that instant replay did not overturn a blown call learns, it is difficult to overcome a deferential standard of review. The deferential standard of review our court applies to ERISA decisions often determines the outcome of disputes that are far more important than a sporting event: decisions made by retirement and health plans during some of life’s most difficult times, as this case involving a teenager with a serious eating disorder demonstrates. So it is striking that we are the only circuit that would apply that deference to factual determinations made by an ERISA administrator when the plan does not vest them with that discretion.” (emphasis added)
  • And the conclusion of the unanimous Dorian panel opinion said: “It is time to abandon the Davis & Sons test for determining whether or not a contract is a maritime contract. The test relies more on tort principles than contract principles to decide a contract case. It is too flexible to allow parties or their attorneys to predict whether a court will decide if a contract is maritime or non-maritime or for judges to decide the cases consistently. The Supreme Court’s decision in Kirby reinforces this conclusion. Just as important, the above test will allow all parties to the contract to more accurately allocate risks and determine their insurance needs more reliably.” (emphasis added)

Practical tip for private eyes

In a break from the usual topics about federal procedure, today’s post about the case of Foster v. Woods provides some practical advice for private investigators. Foster, a licensed private investigator, tailed a car into a school parking lot and observed it for a short period before realizing that the driver was his target’s teenaged son. Unfortunately for Foster, the son observed him and told a friend, whose father was the local sheriff. After Foster left the school grounds the sheriff arrested him and unsuccessfully attempted to prosecute him for having brought a firearm onto school grounds (although Foster held a concealed-carry permit, and neither he nor the firearm left the car while in the school parking lot. Foster sued for wrongful arrest; the Fifth Circuit affirmed summary judgment for the sheriff: “Relevant here, Woods knew that Foster was not a student, that he followed a student’s vehicle into a student parking lot posted with a ‘no trespassing” sign, and that Foster remained in the lot for some time as students were arriving for school. . . . Given the facts known to Woods, he had knowledge that would warrant a reasonable officer to believe that Foster violated the trespass statute.” Advice – use caution when entering private property.

First Amendment v. Security – not about travel bans –

In an interesting parallel to the ongoing litigation about travel bans (which most recently produced a District of Hawaii opinion granting a TRO), the Fifth Circuit denied en banc review in Defense Distributed v. U.S. Dep’t of State, which affirmed a preliminary injunction about the use of 3-D printing technology to make certain firearms. A dissent observes: “Certainly there is a strong public interest in national security. But there is a paramount public interest in the exercise of constitutional rights, particularly those guaranteed by the First Amendment . . . ” No. 15-50759 (March 15, 2017).

Summary of circuit split about “cross-appeal” rule –

It is well-settled nationally that “an appellate court may not alter a judgment to benefit a nonappealing party” because “it takes a cross-appeal to justify a remedy in favor of an appellee.” Greenlaw v. United States, 554 U.S. 237, 244–45 (2008). The Fifth Circuit treats that principle as jurisdictional. See, e.g., Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 250 (5th Cir. 2010) (“[T]his circuit follows the general rule that, in the absence of a cross-appeal, an appellate court has no jurisdiction to modify a judgment so as to enlarge the rights of the appellee or diminish the rights of the appellant.”) Some other Circuits, however, take a different view. See, e.g., Am. Roll-On Roll-Off Carrier LLC v. P&O Parts Baltimore, Inc., 479 F.3d 288, 295 (4th Cir. 2007) (“This circuit views the cross-appeal requirement as one of practice, rather than as a strict jurisdictional requirement.”) (Thanks to my LPCH colleague Russ Herman for pointing this out.)

Potential new Fifth Circuit judges

Texas Lawyer reports that six candidates are under consideration for the two vacancies on the Fifth Circuit – “Texas Supreme Court Justice Don Willett; U.S. District Court Judge Reed O’Connor of Fort Worth; former Texas solicitor general James Ho; Andy Oldham, a deputy general counsel to Gov. Greg Abbott; Michael Massengale, a justice on Houston’s First Court of Appeals; and Brett Busby, a justice on Houston’s Fourteenth Court of Appeals” – the full story appears here.

A picture is worth a thousand words –

Press coverage of Judge Neil Gorsuch’s nomination to the Supreme Court has noted his intelligent and accessible writing style, including use of a sentence diagram (left) in a criminal case that turned on what elements of the crime required proof of intent. In the same spirit, in dissent from the denial of en banc rehearing in a highly technical case about protection of the dusky gopher frog (right), Judge Edith Jones used a pair of Venn diagrams to illustrate her view of how the Endangered Species Act should operate (below left), contrasted with the panel opinion’s (below right). Markle Interests v. U.S. Fish & Wildlife Service, No. 14-31008 (Feb. 14, 2017).

 

Persistence.

persistenceThe NLRB consistently holds that an agreement requiring arbitration of individual claims (and thus foreclosing class actions) violates federal labor law; the Fifth Circuit consistently reverses the NLRB on this point. After again reversing the NLRB and citing the Circuit’s “rule of orderliness” about deference to prior panel decisions, the Court noted the NLRB’s remarkably candid litigation position: “The Board concedes that this court has squarely rejected both of those decisions, and that our precedents necessitate rejecting its arguments here. The Board further acknowledges that it seeks to manufacture a circuit split in order to ‘facilitate Supreme Court review.'”  Employers Resource v. NLRB, No. 16-60034 (Nov. 1, 2016, unpublished).

2 RICO holdings and 1 general observation –

brasher-img9-perschke-o-bgBonnie Pereida’s estate successfully brought RICO claims against a dealer in rare coins, arguing that it systematically deceived Ms. Pereida about the quality of the coins she bought from it. The Fifth Circuit agreed with the estate that the RICO claim survived her, finding that “RICO’s remedial purpose predominates” over its penal purposes. But, it reversed as to the proof of a “pattern of racketeering activity,” finding that the relevant time period was too short and did not qualify as “open-ended.” It noted that on remand, the plaintiff could potentially still elect a remedy in common-law fraud where this problem would not arise.

During that analysis, the Court offered a telling general comment: “[Plaintiff] contends that the Defendants waived this challenge to the ‘pattern’ element by raising it for the first time in their motion for a new trial. It should have been raised, he argues, in a motion for summary judgment so he would have known that this was a contested issue. The argument says a lot about modern civil litigation in which summary judgment, rather than trial, has become the focus. But when a case does go to trial, the burden is on the plaintiff to prove every element.” Malvino v. Dellniversita, No. 15-41435 (Oct. 20, 2016) (emphasis added).

Musings on the recent en banc vote

conservative snapshotA recurring theme in my CLE presentations about the Fifth Circuit is that the phrase “a conservative court” is largely meaningless. To be sure, a majority of Fifth Circuit judges were appointed by Republican presidents, and many judges on the court have “conservative” philosophies, but what that actually means in a specific case about separation of power between judge and jury, trial and appellate courts, branches of government, etc. can vary a great deal.

Consider the recent 8-7 vote against en banc rehearing in Passmore v. Baylor Health, discussed in yesterday’s post, which involved a close Erie question about state law pre-suit requirements. In a slide I just prepared for the upcoming Advanced Civil Appellate course in Austin, you can see the nominees of Republican presidents in red and those of Democratic presidents in blue — the “for” vote was 5-2 and the “against” vote was 5-3. (The judges with stars by their names joined a dissent.) Perhaps that split just shows that this technical issue is not ideological, but I think it also shows that there is far more to judicial philosophy than the simple label of “conservative.”

The Erie Railway keeps a-rollin’

erie railwayThe Fifth Circuit recently denied en banc review — by a “photo finish” 8-7 vote — of Passmore v. Baylor Health System, which concluded that Texas’s expert report requirements for medical malpractice cases were procedural and did not apply in federal court under the Erie doctrine. A dissent argued that this vote was inconsistent with the recent en banc opinion in Flagg v. Stryker Corp. that analyzed a comparable requirement of Louisiana law.

But it wasn’t published!

lawbooksIn a case about the scope of a “drilling rig” exclusion in an insurance policy, a party asked the Fifth Circuit to not follow a previous unpublished opinion because it was not binding precedent. The Court disagreed, stating: “While [Appellant] is correct, we find Cash’s reasoning compelling,” and then applying the precedents cited by the opinion. Nonbinding precedent has persuasive power. Richard v. Dolphin Drilling Ltd., No. 16-30003 (Aug. 1, 2016).

Tie goes to the Fifth Circuit

  • cobb slidingBy short per curiam orders resulting from 4-4 votes, the Supreme Court affirmed the Fifth Circuit’s opinion that upheld an injunction of major parts of President Obama’s immigration program, Texas v. United States, 809 F.3d 134 (5th Cir. 2015), and an important opinion about the jurisdiction of Indian tribal courts, Dolgencorp v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014).
  • These rulings are a “split decision” for Judge Jerry Smith, who wrote for the panel majority in Texas while dissenting in Dolgencorp.
  • It is unfortunate that the political process has not produced a ninth Supreme Court Justice, so that the voice of the nation’s highest court could be heard on these important questions of public policy.

Improper joinder clarified, maybe.

joinderAlleging that a toe joint implant did not work properly, Flagg sued “Manufacturing Defendants” (who built the implant) and “Medical Defendants” (who surgically installed it in Flagg’s foot.)  The Manufacturing Defendants were diverse from Flagg,  a Louisiana citizen, while the Medical Defendants were not.

Affirming the district court while reversing the panel, an 11-4 en banc opinion holds “the plaintiff had improperly joined the non-diverse defendants because [he] has not exhausted his claims against those parties as required by statute.”  That Louisiana statute requires review by a “medical review panel” before suit is filed against a health care provider; the Fifth Circuit concluded that pursuant to it, “there is no doubt that the state court would have been required to dismiss the Medical Defendants from the case,” as no such review had occurred at the time of removal.  A vigorous dissent raised questions about the Court’s standard for analyzing claims of improper joinder, as well as whether this kind of state statute (“a non-adjudicative, non-comprehensive, waivable process since concluded in this case”) was a proper foundation for an improper joinder claim.  Flagg v. Stryker Corp., No. 14-31169 (March 24, 2016) (en banc).

“Please, no more Deepwater Horizon appeals.”

bplogoJustice Blackmun famously declared, “From this day forward, I no longer shall tinker with the machinery of death.”  Callins v. Collins, 510 U.S. 1141 (1994).  In less dramatic fashion, in the 9th appeal from a ruling about the administration of the Deepwater Horizon settlement, the Fifth Circuit has declared: “If the discretionary nature of the district court’s review is to have any meaning, the court must be able to avoid appeals like this one which involve no pressing question of how the [BP] Settlement Agreement should be interpreted or implemented, but simply raise the correctness of a discretionary administrative decision in the facts of a single claimant’s case.”  In re Deepwater Horizon, No. 15-30395 (March 8, 2016).