Justice 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).
Principled and provocative, Justice Scalia served as the Supreme Court’s liaison to the Fifth Circuit for many years. Vaya con Dios.
In unsurprising but still important news, the Supreme Court has decided to review the Fifth Circuit’s opinion in Texas v. United States, the challenge to President Obama’s immigration initiatives. The order granting the petition notes: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.'”
Here is a reprint of my article this week in the Texas Lawbook, Federal Litigation in the Fifth Circuit in the New Year. I hope you find it informative and helpful.
TransCanada has sued in Houston federal court about the Keystone Pipeline, alleging that President Obama exceeded his Constitutional authority by denying the necessary permission to proceed. While this just-filed lawsuit is a long way from Fifth Circuit review, and TransCanada has a substantial business presence in Houston, it comes as no surprise after the rejection of President Obama’s immigration policies in Texas v. United States that this challenge to executive power would be filed in this Circuit. Here is the complaint in TransCanada v. Kerry.
In an opinion with enormous policy impact, the Fifth Circuit has affirmed the injunction of President Obama’s executive actions about immigration. Texas v. United States, No. 15-40238 (revised Nov. 25, 2015). Judge Smith wrote for the 2-judge majority, joined by Judge Elrod — an unsurprising outcome, since they formed the majority in the Court’s earlier opinion that denied an interim stay. Judge King dissented. A petition for Supreme Court review is a certainty. A good representative article about the decision appears in The Atlantic.
1. As the Supreme Court term wound down, it affirmed the panel opinion in Baker Botts LLP v. ASARCO, holding that under the Bankruptcy Code: “Section §330(a)(1) does not permit bankruptcy courts to award fees to §327(a) professionals for defending fee applications.” No. 14–103 (U.S. June 15, 2015).
2. The Supreme Court also granted review of Dolgencorp Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014), which addresses Indian tribal court jurisdiction over a tort claim.
Moving to dismiss? Drafting a complaint? Educating a colleague? Check out the newly-revised Twombly/Iqbal page on 600Camp, which includes the recent insights from Wooten v. McDonald Transit Associates, No. 13-11035 (June 7, 2015) (statutory employment claim), Owens v. Jastrow, No. 13-10928 (June 12, 2015) (scienter), and mortgage servicing cases.
At mid-year 2015, you can see here my recommendations for five cases from the last 3 months that are well worth a read.
In three opinions — one for each state in the Fifth Circuit — the Court remanded the “gay marriage” cases in light of Obergefell v. Hodges. E.g., De Leon v. Abbott, No. 14-31037 (July 1, 2015). Noting that the Supreme Court addressed both the Fourteenth and First Amendments in its opinion, the Fifth Circuit observed: “We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them.” (I was recently quoted by the Dallas Morning News about other matters related to Obergefell.)
In Texas v. United States, the high-profile challenge to the Obama Administration’s immigration policies, the oral argument panel has been announced for the “merits” argument on July 10 — Judges King, Smith, and Elrod. Of course, Judges Smith and Elrod were the two majority votes on the “preliminary stay” panel that ruled for the plaintiffs and denied a stay, strongly signalling how they will the view the issues presented in this phase of the case.
In a 5-4 decision, the Supreme Court reversed the Fifth Circuit’s 2-1 panel opinion in the “Confederate Flag License Plate Case,” :reasoning: “Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring [the Sons of Confederate Veteran’s] proposed design.” A thoughtful dissent begins: “The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing.”
More mandamus news of Trinity Industries, the Fifth Circuit, and the Marshall Division of the Eastern District of Texas. Recall that last October, the Fifth Circuit issued an unusual mandamus ruling that denied Trinity’s request for relief on the eve of trial in a high-profile qui tam case, but expressed concern that the federal government had “found the defendant’s product sufficiently compliant with federal safety standards and therefore fully eligible, in the past, present and future, for federal reimbursement claims.” The case went forward, the jury returned a large verdict against Trinity, and a later mandamus petition by Trinity was unavailing. Judgment has not yet been entered.
The same players have returned to a similar stage. In January 2015, in a product liability case arising from a North Carolina automobile accident, Trinity moved to transfer venue from the Marshall Division. As discovery deadlines approached, Trinity filed an emergency stay application on May 6, and after hearing no response, sought mandamus relief from the Fifth Circuit on May 15. Later that day, the trial court ordered a transfer to North Carolina, mooting the mandamus petition.
Now it was the trial court’s turn to comment, adding an unusual “addendum” to its opinion. The trial court pointed out that it was already in the process of drafting an order to transfer venue when Trinity filed its mandamus petition. The court further noted that “Trinity has stumbled in its race for credibility” by seeking mandamus intervention, and counseled greater patience from litigants in the future in light of crowded docket conditions.
These events, aside of their dramatic nature, highlight a practical and important challenge of “rocket dockets.” Busy dockets, coupled with tightly compressed discovery schedules, can force counsel into “Catch-22” situations. Counsel either advises their clients to endure extensive, fast-paced litigation activity that they believe is in the wrong place, or risk the ire of courts by “bugging” them for dispositive rulings.
(This blog’s author represents Trinity but not in either matter referred to above.)
The panel has been announced for Friday’s arguments in “the immigration case,” Texas v. United States: Judges Smith, Elrod, and Higginson. Like the recent panel in Crane v. Johnson (No.14-10049, April 2, 2015), this panel draws from the major “wings” of the Court – a senior Reagan appointee, a recent Bush appointee (both from Texas) and the second-newest appointee by Obama.
The similarity of panel makeup suggests the potential for a similar result. Interestingly, while Judge Smith is a strong separation-of-powers conservative (consider his dissent in the en banc False Claims Act case of Riley v. St. Luke’s Episcopal Hospital, 252 F.3d 749 (5th Cir. 2001)) he is also a strong voice for judicial action when there is jurisdiction; for example, he has led the Court toward expanded pretrial oversight of district courts in opinions such as In re: Radmax. Judge Higginson, while new, has a record of thorough opinions that comport with the majority view of legal issues (consider his recent opinion in the False Claims Act case of United States ex rel. Shupe v. Cisco Systems, Inc., 759 F.3d 379 (5th Cir. 2014)). The panel will give the plaintiffs a full hearing but may well find problems with their standing theories.
At the risk of reading one tea leaf too many, it is worth noting that Judge Elrod dissented from the denial of en banc rehearing in Radmax, as well as a recent panel opinion that granted mandamus relief on a forum issue, In re Lloyd’s Register North America, Inc., No. 14-20554 (Feb. 24, 2015). The analogy between the Court’s mandamus jurisdiction and the justiciability issues in Texas v. United States is not powerful – and indeed, Judge Smith was on the opposite side of both matters from Judge Elrod – but it does suggest a healthy concern for judicial constraint.
The district court has denied an interim stay of its injunction against the Obama Administration’s immigration policies; the Fifth Circuit has recently rejected, on standing grounds, a comparable case; and oral argument is set for April 17 before the Fifth Circuit on an appellate motion to stay the injunction. I was recently interviewed by Law360 about the matter and anticipate announcement by the Court of the panel for the April 17 argument in the near future.
With a stay motion still pending in the district court, the United States has asked the Fifth Circuit for an emergency stay of the recent ruling that enjoins President Obama’s immigration program. No. 15-40238. A short clerk’s order, which does not reveal the identity or involvement of any judge “behind the curtain,” has set a response date of March 23. Law360 has written a good article with more detail about the current status in the district court.
In November, a Fifth Circuit panel affirmed the NLRB’s $30,000 award in a retaliation case based on the employer’s handling of a whistleblower. Halliburton Co. v. Administratve Review Board, U.S. Dep’t of Labor, No. 13-60323. The full court has now denied the petition for en banc review, by the close margin of 7 judges for review and 8 against. A 3-judge dissent criticizes the “ad hoc nature” of the panel opinion and warns that it will lead to confusion about what specific conduct can amount to a materially adverse employment action in the context of a retaliation claim.
Monday evening, a district judge in South Texas enjoined President Obama’s immigration program; the full text of his opinion is available here. (The case has the remarkably awkward caption of “Texas v. United States.”) An appeal has not yet been docketed with the Fifth Circuit. As with the recent gay marriage arguments, the makeup of the panel will be critical to the resolution of this extremely important case. The Washington Post story is a good example of the media coverage of the ruling.
1. The Fifth Circuit heard oral arguments on Friday, January 9, in the gay marriage appeals from each of the three states in the Circuit. Here is a representative news article about the arguments, and the recording of the arguments is available here.
2. Also on January 9, the Court denied en banc review of a Clean Water Act case arising from the Deepwater Horizon disaster. The vote was 6 in favor of review, 7 opposed, with a short dissenting opinion. I have not followed this opinion previously, and the en banc split is not as telling about commercial cases as a a trio of other votes, but it is nevertheless an uncommon insight on the full Court’s view of an issue.
Judge Emilio Garza of San Antonio, who served ably on the Fifth Circuit over 20 years, has retired effective January 5, 2015.
Here’s a holiday gift from 600Camp — a short article called “How (not) to Draft Arbitration Clauses.” It reviews five cases to offer practical, specific tips for drafting arbitration clauses; specifically, in business settings involving more than one contract signed at different times. Enjoy!
The Supreme Court has granted review of the Fifth Circuit’s opinion in Texas Division, Sons of Confederate Veterans v. Vandegriff, a First Amendment case about Texas’s denial of a request for a specialty license plate featuring the Confederate battle flag.
The Supreme Court has denied review of BP’s challenges to the Deepwater Horizon settlement, resolved by the Fifth Circuit earlier this year in a complicated series of panel opinions and denials of rehearing.