In 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scope of a “drilling rig” exclusion in an insurance policy, a party asked the Fifth Circuit to not follow a previous unpublished opinion because it was not binding precedent.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).
- By 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.
In a 4-3 opinion written by Justice Kennedy, the Supreme Court affirmed the Fifth Circuit’s exhaustive analysis and validation of the admissions policies used by the University of Texas at Austin. Fisher v. University of Texas, No. 14–981 (U.S. June 23, 2016). The Dallas Morning News has an excellent summary of this case’s long history.
I recently spoke at the University of Texas appellate course to provide an update on recent Fifth Circuit cases, here is my PowerPoint from that presentation.
Alleging 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).
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.