Longrunning litigation about pretrial bail in Texas criminal cases came to an end with a second en banc opinion, Daves v. Dallas County, No. 18-11368 (March 31, 2023). It held by a substantial majority that legislative changes to the relevant laws had mooted the case, and (8-7) that Younger abstention should have barred the case from proceeding in federal court in the first instance. The breakdown of votes and opinions is as follows:
In a dissent from a dismissal order in Chapman v. Doe, Justice Jackson questioned whether the Supreme Court had become too quick to vacate judgments, noting, inter alia, that “our common-law system assumes that judicial decisions are valuable and should not be cast aside lightly, especially because judicial precedents ‘are not merely the property of private litigants,’ but also belong to the public and ‘legal community as a whole.'” (reviewing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).
As she was the sole dissenter on this point, her views are apparently not shared by a majority of that court, but her analysis is still thought-provoking and deserves study, as it examines a part of the appellate process that often goes largely unnoticed. Thanks to Ben Taylor for drawing my attention to this one!
Last year the Fifth Circuit held that the Consumer Financial Protection Bureau was funded through an unconstitutional mechanism that circumvented the Congressional appropriations process. That matter is now before the Supreme Court. The Second Circuit has now joined the fray in CFPB v. Law Offices of Crystal Moroney, P.C., No. 20-3471 (March 23, 2023), joining the D.C. Circuit in finding that the CFPB’s funding mechanism does not violated the Appropriations Clause.
The Fifth Circuit didn’t bite on a last-minute attempt to stop a trial in the Allen Stanford litigation, denying a mandamus petition (with memorable language obviously written by Judge Higginbotham despite the “per curiam” designation):
This case is, at minimum, complex, featuring myriad fact-specific issues litigated over the course of nearly a decade and a half through multiple courts. Halting the litigation’s momentum mere days before trial is set to begin would require indisputable clarity as to its necessity. Here, no such need is evident; assisted by able briefing and a review of the record, we are unpersuaded that either petition reaches the high demands of mandamus, or that the movant has satisfied the similar burden of staying the trial….
The four most powerful words from the lips of a United States District Judge are simply “Call your first witness,” and the veteran presiding judge will so state in a few short days.
In re Toronto-Dominion Bank, No. 22-20648 (Feb. 14, 2023). (It could be debated whether those are in fact a trial judge’s most powerful words–a case could be made for “So ordered” or “Your objection is overruled,” for example.)
Last week’s opinion in United States v. Rahimi found that a federal law, criminalizing the possession of a firearm by someone under a domestic-violence restraining order, violated the Second Amendment’s protection of a right to bear arms.
The Attorney General plans to seek review. The perspective of a Dallas-based operator of a women’s shelter appears in this Fox 4 news story on the case. I recently wrote an op-ed about the opinion in the Dallas Morning News. A flavor of the national commentary about the case can be obtained from these representative articles in Slate and Reason.
On January 29, the Washington Post published a lengthy article about issues of the day in the Fifth Circuit.
Significantly different and tone and focus, it is similar in scope to a Texas Monthly article of last summer about the Court.
Last July, I fearlessly predicted that “[a] petition for en banc rehearing seems a near certainty” in Wages & White Lion Investments v. FDA, a challenge to a significant FDA regulation in the vaping industry. The full court has now voted to consider the matter en banc; time will tell if the panel majority’s analysis goes up in smoke, or whether the case simply offers smoke and no fire.
The Senate today confirmed Hon. Dana Douglas of Louisiana as the newest judge on the Fifth Circuit, taking a seat vacated by long-serving Hon. James Dennis. Welcome to the court, Judge Douglas! Louisiana’s Advocate has a thorough story about her confirmation hearings and personal background.
12-3 (one recusal), the full Fifth Circuit denied en banc review in Freedom From Religion Foundation v. Mack, in which the panel found no coercion (and thus no standing) in a challenge to a Texas JP’s pre-court practices.
With #RIPTwitter trending as the top hashtag on that platform, it seemed like a good time to reflect on the phenomenon that is/was #appellatetwitter, and recall the remarkable talent of now-Judge @JusticeWillett for legal tweeting:
In the 1985 classic, “Return of the Living Dead,” a rainstorm spreads a zombie-creating chemical throughout a city. In 2022, the Supreme Court’s relentless focus on originalism in cases like Dobbs has also awakened long-dead legal doctrines (even as it put to bed the prospects for a “Red Wave” in 2022’s Congressional elections).
Such a resurrection can be seen in the concurrence from Golden Glow Tanning Salon v. City of Columbus, No. 21-60898 (Nov. 8, 2022), which advocates an examination of a “right to earn a living” in light of how such economic matters were understood in the late 1700s.
Of course, that phrasing is precisely how the Supreme Court described the issue in Lochner v. New York, the long-discredited 1905 opinion that struck down a maximum-hour restriction in the baking industry:
“Statutes of the nature of that under review, limiting the
hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual ….”
The Supreme Court abandoned Lochner in the 1930s when laissez-faire ideas proved useless in the face of a systemic failure of capitalism itself. There is, of course, ample room for argument about the proper role of government in the economy. But the invocation of “originalism” to simply ignore Lochner ‘s failure is not consistent with the recognized best practices for battling zombies.
The slippery statutory-interpretation question in United States v. Palomares, briefly summarized in Monday’s post, presented a concurrence by Judge Andy Oldham. In it, he reminded of the importance of “textualism” in statutory interpretation, while cautioning against “hyper-literalism”:
“‘[W]ords are given meaning by their context, and context includes the purpose of the text.’ As Justice Scalia once quipped, without context, we could not tell whether the word draft meant a bank note or a breeze. Such nuance is lost on the hyper-literalist.”
(citations omitted). He further observed:
“[H]yper-literalism … opens textualism to the very criticism that necessitated textualism in the first place. In one of the most influential law review articles ever written, Karl Llewellyn denigrated the late nineteenth century ‘Formal Period,’ in which ‘statutes tended to be limited or even eviscerated by wooden and literal reading, in a sort of long-drawn battle between a balky, stiff-necked, wrongheaded court and a legislature which had only words with which to drive that court.'”
(emphasis added, quoting Karl M. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed,” 3 Vanderbilt L. Rev. 395 (1950)).
The prefix “hyper-” is well chosen; Jean Baudrillard’s Simulacra and Simulations developed the concept of “hyperreality,” by which “simulacra” of reality can supplant reality itself–precisely the scenario described by Llewellyn and Judge Oldham’s concurrence:
If we were able to take as the finest allegory of simulation the Borges tale where the cartographers of the Empire draw up a map so detailed that it ends up exactly covering the territory (but where, with the decline of the Empire this map becomes frayed and finally ruined, a few shreds still discernible in the deserts – the metaphysical beauty of this ruined abstraction, bearing witness to an imperial pride and rotting like a carcass, returning to the substance of the soil, rather as an aging double ends up being confused with the real thing), this fable would then have come full circle for us, and now has nothing but the discrete charm of second-order simulacra.
Bloomberg Law provides a good summary of yesterday’s arguments in SEC v. Cochran, addressed by the en banc Fifth Circuit in 2021, as to the appropriate places to advance constitutional challenges to SEC enforcement actions.
The Fifth Circuit recently declined to review Jarkesy v. SEC en banc; the division of votes was as follows (names in blue were appointed by a Democratic president; red, by a Republican one):
The recent Crane v. City of Arlington opinion declined to dismiss a traffic-stop case on qualified immunity grounds, noting significant factual dispute about how the situation escalated into a tragic shooting. No. 21-10644 (revised Oct. 4, 2022). The Dallas Morning News covered the case, and I did a lengthy interview with Fox 4 in Dallas about it.
Professor Steve Vladeck recently filed a provocative amicus brief about the State of Texas’s forum-selection practices in public law / constitutional cases.
The Fifth Circuit is soliciting comment on a potential change to local rule 47.5.4:
Legal instruments often contain polite phrases before they get to the actual command in the instrument (“you have been sued and must file an answer,” or “you have been drafted,” etc.) Defense Distributed v. Platkin presents an unusual example of polite language in a legal instrument with no accompanying command, the background for which is as follows:
On September 16, the Court issued a routine order setting the matter for the earliest available argument date–but with a concurrence joined by two judges, asking that the New Jersey court reconsider the issue of transfer back to Texas:
“We can think of no substantive reason—and none has been offered to us—why this case should nevertheless proceed in New Jersey rather than Texas, other than disagreement with our decision in Defense Distributed. The Attorney General of New Jersey confirmed as much during oral argument. So we respectfully ask the District of New Jersey to honor our decision in Defense Distributed and grant the request to return the case back to the Western District of Texas—consistent with the judiciary’s longstanding tradition of comity, both within and across the circuits ….”
No. 22-50669 (Sept. 16, 2022) (Judge Ho concurring, joined by Judge Elrod, but not Judge Graves).
Sambrano v. United Airlines, a religious-discrimination case about an airline’s vaccine mandate that prompted a (literally) fiery dissent from the panel opinion, ended in a 13-4 vote against en banc review. A dissent again urged caution in the use of unpublished (and thus, nonprecedential) opinions in significant matters. No. 21-11159 (Aug. 18, 2022).
The 2017 collision between the MV ACX Crystal and the destroyer U.S. Fitzgerald led to litigation in New Orleans federal court against NYK, a huge shipping concern with global operations. The district court acknowledged that for this international case, the constitutional standard for personal jurisdiction was based on the Fifth rather than the Fourteenth Amendment, but concluded that the standards were materially similar and that it lacked jurisdiction over NYK.
A Fifth Circuit panel affirmed and the en banc court did also, noting that the other Circuits addressing this constitutional question reached similar conclusions. A dissent argued that the majority’s position about jurisdiction would undermine the effective operation of Congressionally-created causes of action involving asset seizure by the Castro regime and terrorist activity. Douglass v. NYK, No. 20-30382 (Aug. 16, 2022) (en banc). The judges’ votes broke along atypical lines and are detailed below:
The well-known poem Antigonish begins:
Yesterday, upon the stair,
I met a man who wasn’t there
He wasn’t there again today
I wish, I wish he’d go away.
In that general spirit, in recent days, both the U.S. Court of Appeals for the Fifth Circuit and the Court of Appeals for the Fifth District at Dallas had close en banc votes involving questions of arbitrability, as to a party who “wasn’t there”–who had not signed an arbitration agreement, but was nevertheless potentially subject to it. (The Dallas case is discussed here; the Fifth Circuit’s, here.)
Whether the timing is an example of synchronicity I will leave to others. The courts’ difficulty with these issues shows the strong feelings provoked by the issue of court access, even among very sophisticated jurists, in an area of the law with well-developed case law on many key points.
By an 8-8 vote over a dissent, the full Fifth Circuit declined to review Newman v. Plains All Am. Pipeline, L.P., a case about a court’s power to determine arbitrability when a nonsignatory seeks to enforce an arbitration clause. The breakdown of votes was as follows (Senior Judge King was the third panel member):
Beatriz Ball, L.L.C. v. Barballago Co., No. 21-30029 (July 12, 2022), a trade-dress case under the Lanham Act, produced a thorough concurrence by soon-to-depart Judge Costa about the distinctions between review of bench trials, and review of jury verdicts. He began by observing:
“I write separately to remark on how our remand of the trade dress claim reveals a paradox that has perplexed me about bench trials: We give a trial judge’s detailed and intensive factfinding less deference than a jury’s unexplained verdict.
If a jury had rejected Beatriz Ball’s trade dress claim—giving no more explanation than a simple ‘No’ on the verdict form—we would presumably affirm. After all, we do not hold that Beatriz Ball is entitled to judgment as a matter of law on this claim. Instead, we remand for the district court to reassess the trade dress claim because of some errors in its 33 pages explaining why it found no protectable trade dress.”
And he concluded after a review of history and social-science research: “It turns out, then, that there is good reason for the seeming anomaly of giving less deference to bench trials: Larger and more representative groups are the ones more likely to reach the correct outcome.”
In its analysis, the concurrence notes one commentator’s observation that “while the Seventh Amendment does not compel the backwards-seeming rule giving less deference to judges’ findings, it does explain it. ‘[O]ur traditional and constitutionalized reverence for jury trial’ is why we trust juries more.” An element of that “traditional reverence” may well include some indifference to whether a jury in fact reaches a “correct” result, as the mere existence of a jury has a powerful symbolic value in its own right. See generally Batson v. Kentucky, 476 U.S. 79, 90 (1986) (“In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.”).
“[T]he oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.” E.g., In re: Franchise Servcs. of N. Am., 891 F.3d 198 (5th Cir. 2018). That said, not all statements of legal rules are the same (as detailed in this Pepperdine Law Review article that I co-authored several years ago). Illustrating that point:
My friend Walter Woodruff and I have picked our “Top Five Cases to Know” from the Fifth Circuit for the first half of 2022 – we agreed on 3/5 – the Bar Association for the Fifth Federal Circuit has been Tweeting them out the last few days!
A recent Texas Monthly article offers a detailed analysis of the Fifth Circuit and its recent opinions.
The Fifth Circuit has set for rehearing en banc:
Ardoin v. Robinson, in which the Fifth Circuit denied a stay in a case about a new Louisiana congressional district, was stayed by the Supreme Court, which also granted the cert petition and held the matter held in abeyance pending a ruling in another case.
In his 19th round of judicial nominations, announced yesterday, President Biden has nominated U.S. Magistrate Judge Dana Douglas of New Orleans to the Fifth Circuit. The White House website provides a short biographical sketch:
The Fifth Circuit recently put in place some new local rules about disclosure statements and certificates of service.
By a close vote, the Supreme Court vacated the Fifth Circuit’s order that stayed the trial court’s preliminary injunction in the Netchoice litigation about Texas’s social-media statute.
The unsuccessful parties in the NetChoice v. Paxton litigation have asked the Supreme Court, through Circuit Justice Alito, for an emergency stay. A response is due May 18.
A Fifth Circuit motions panel granted Texas’ request to stay a preliminary injunction against that state’s law about content moderation by major social media platforms; commentators suggest that a rapid Supreme Court appeal will now occur. (The asterisk below indicates that the ruling was not unanimous. No opinion has issued yet; argument was just conducted on May 9th.)
Two new Federal Rules of Appellate Procedure have been finalized and transmitted to Congress, they clarify earlier rule 25 about privacy protection, and 42 about voluntary dismissal.
Johnson v. Huffington Post held, as to a libel claim, that Fifth Circuit precedent compelled dismissal for lack of personal jurisdiction: “HuffPost is interactive, but its story about Johnson has no ties to Texas. The story does not mention Texas. It recounts a meeting that took place outside Texas, and it used no Texan sources. Accordingly, we lack jurisdiction over HuffPost with respect to Johnson’s libel claim.” The full court recently voted 10-7 to not take the matter en banc, as follows:
The third panel member, Judge King, as a senior judge was not eligible to participate in the en banc vote. The four judges whose names are underlined joined a dissent from the denial of en banc review.
Reversing the Fifth Circuit’s opinion in City of Austin v. Reagan Nat’l Advertising, 972 F.3d 696 (5th Cir. 2020), the Supreme Court held that Austin’s use of an “on-/off-premises distinction” did not create a content restriction. The majority opinion reasoned:
A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions.
No. 20-1029 (U.S. April 21, 2022) (applying Reed v. Gilbert, 576 U.S. 155 (2015)).
While Solis v. Serrett deftly summarizes the Baroque case law about qualified immunity and use of force, it will be remembered for its constructive use of hyperlinks — links to the relevant video footage about the incidents in question. Particularly in this area of law, where dash and body cameras often provide critical evidence, including this material in the opinion provides helpful guidance for law enforcement officers and their counsel. No. 21-20256 (April 21, 2022) (citing, inter alia, this body camera video and this dash camera video). 
Of general interest to court-watchers, building on a recent interview that I did with the Lincoln Project, the current episode of the “Coale Mind” podcast examines why today’s Supreme Court is like a bowl of soup, heated by two separate burners.
The first is the ongoing scrutiny over Justice Thomas’s recusal decisions in matters related to his wife’s political activity. The second, cool now but with the potential to become blazing hot, is the pending Dobbs case in which the Court could significantly limit or even overrule Roe v. Wade.
The combined heat potentially generated by these two issues–an ethical dispute about a Justice coupled with the possibility of a uniquely controversial ruling–could present a legitimacy problem for the Court of a magnitude not seen in recent memory.
The panel majority opinion in Defense Distributed v. Bruck presents a rare — indeed, near-singular — grant of mandamus relief as to a transfer of venue (combined with a ruling about severance). The business at issue involves the growing, and controversial, field of creating firearms with 3-D printers. A dissent made a number of objections, substantive and procedural. No. 21-50327 (April 1, 2022).
Trafigura Trading v. United States featured a dispute about one of the many prohibitions in Article I Section 9 of the Constitution; specifically, clause 5, which says: “No Tax or Duty shall be laid on Articles exported from any State.” An oil company argued that a federally-imposed charge on oil exports, collected to finance the Oil Spill Liability Trust Fund, violated this provision.
The district court ruled for the oil company and a Fifth Circuit panel affirmed. One judge, drawing heavily from lyrics made famous by “Hamilton,” described the surprisingly colorful history of this provision, and voted to affirm. Another judge voted to affirm but declined to join that opinion. And the third judge dissented. As a result, the other opinion had no quorum supporting it and thus lacked precedential effect. No. 21-20127 (March 24, 2022).
On that broader subject, cf. Sambrano v. United Airlines, No. 21-11159 (Feb. 17, 2022) (Smith, J., dissenting) (sympathizing with “the hapless trial judge or conscientious advocate” that must reason from nonprecedential rulings); see generally Alexander Hamilton, Federalist No. 78 (May 28, 1788) (“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”).
The Texas Lawbook summarizes the many practical pointers from an hour-long discussion among Judges Haynes, Costa, and Ho at the recent Bench-Bar conference of the Northern District of Texas. Judge Hendrix from that District’s Lubbock Division moderated.
A fiery dissent (literally fiery, as it warns that “the Good Ship Fifth Circuit is afire”) in Sambrano v. United Airlines faults the majority for, among other matters, not publishing the opinion. No. 21-11159 (Feb. 17, 2022). The opinions’ review of Fifth Circuit Local Rule 47.5.4 echoes a long-running debate, throughout all appellate courts, about the benefits and detriments of having multiple tiers of judicial precedent.
Texas practitioners will recall similar debate leading up to the adoption of Tex. R. App. P. 47.4, the “memorandum opinion” rule. They will also likely see similarities between this strongly worded dissent and the concurrence in Steward Health Care System v. Saidara from the Dallas Court of Appeals in 2021, which also examined the policy judgments embodied in a different set of appellate-procedure rules.
The Texas Lawbook reports that Judge Gregg Costa will resign his position on the Fifth Circuit this summer. Please check the Lawbook‘s page for further information.
A Louisiana-based defendant removed a class action brought by an individual citizen of Louisiana, contending that a co-defendant’s “non-diverse Louisiana citizenship could be disregarded because the [statutory] claims against [the co-defendant] were ‘improperly and egregiously misjoined’ with the assignment-based bad faith claim against the removing defendant.”
This concept — called “fraudulent misjoinder” and reliant upon state-law procedural rules — is distinct from the traditional concept of “improper joinder” (a/k/a “fraudulent joinder”), which focuses on the viability of the claim against the nondiverse defendant.
The panel majority in Williams v. Homeland Ins. Co., written by Judge Haynes and joined by Judge Ho, soundly rejected removal based on fraudulent misjoinder, emphasizing the doctrine’s practical consequences: “Adopting the fraudulent misjoinder doctrine will dramatically expand federal jurisdiction, putting the federal district courts in this circuit in the position of resolving procedural matters that are more appropriately resolved in state court—all without a clear statutory hook.” No. 20-30196 (Nov. 30, 2021).
A concurrence by Judge Ho emphasized the importance of the statutory text in rejecting the doctrine; a dissent by Judge Jones focused on “the unusual circumstances here, which bespeak obvious joinder machinations undertaken to avoid federal court.” (both opinions are in the above link). The trio of opinions suggests that this case may receive serious consideration for en banc review.
The Texas Supreme Court is using a new, standard layout for its opinions. Similar in some ways to what the Fifth Circuit has used for some time (most notably, the use of Old English for the court name), it is based on a Century font rather than the Equity font used by the Fifth Circuit. 
I recently wrote an article, “Federalism and Appellate Procedure: Five Texas-Federal Differences to Know,” in the Appellate Advocate, the quarterly publication by the Appellate Section of the State Bar of Texas. I hope you find it interesting and useful.
The fantastically controversial Texas abortion statute returned to the Fifth Circuit, which granted an administrative stay on Friday, October 8, while it receives further briefing about a stay during the appeal of Judge Pittman’s preliminary-injunction order. Enthusiasts of court history will note that the motions panel —
bears substantial similarity to the original panel in what led to the 2021 Supreme Court opinion in Collins v. Yellen. The panel divided 2-1 (Judges Haynes and Stewart, joining) about the constitutional problem with Fannie Mae’s regulator, and then again divided 2-1 (Judges Haynes and Willett, joining) about the proper remedy:
The en banc court divided along atypical lines in Hewitt v. Helix Energy, a dispute about overtime-pay obligations for highly compensated employees in the oil-and-gas industry. The Texas Lawbook and Houston Chronicle have covered the opinion thoroughly; below is a chart showing which judges joined the majority opinion and which judges dissented in some way. Note that Senior Judge Wiener participated in this en banc case because he was part of the original panel.
Longtime observers of the Court may see echoes of the divided en banc court in Mississippi Poultry Ass’n v. Madigan, 31 F.3d 293 (5th Cir. 1994) (en banc), a dispute about the import of the word “same” in the Poultry Products Inspection Act.
Counsel failed to file a summary-judgment response because his notification of filing went to his email “spam” folder. The Fifth Circuit affirmed the denial of relief under Fed. R. Civ. P. 59(e):
“It is not ‘manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’ Notice of Home Depot’s motion for summary judgment was sent to the email address that Rollins’s counsel provided. Rule 5(b)(2)(E) provides for service ‘by filing [the pleading] with the court’s electronic-filing system’ and explains that ‘service is complete upon filing or sending.’ That rule was satisfied here. Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot. Moreover, Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”
Rollins v. Home Depot USA, No. 20-50736 (Aug. 9, 2021).
The Supreme Court will review Reagan National Advertising v. City of Austin, 972 F.3d 696 (5th Cir. 2020). The court’s summary of the issue presented is below, and here is my discussion of the case on the Coale Mind podcast —
