Fifth Circuit Chides Judge for Quick Trial in Texas Border Case

The US Court of Appeals for the Fifth Circuit said it won’t overturn a district judge’s quick schedule for a trial in the US Justice Department’s challenge to Texas’s floating barriers on the southern border, even as several members of the court were highly critical of the lower court’s actions.

Senior US District Judge David Ezra, sitting by designation in the Western District of Texas, in January set a March trial date in the case, a timeline that overlaps with the appellate court taking up en banc a preliminary injunction against the state’s use of the floating barriers in the Rio Grande, which comprises the southern border with Mexico. A Fifth Circuit panel in December upheld that injunction, but the circuit’s active judges in January vacated that ruling and said they would rehear the case in May.

The Fifth Circuit said in a per curiam ruling on Feb. 9 that it wouldn’t grant a mandamus petition to stay the trial court proceedings while it heard the case en banc. However, the judges split across five different opinions about Ezra’s actions.

In one concurrence, Judge Don Willett — joined by Chief Judge Priscilla Richman and Judges Jennifer Walker Elrod, Leslie Southwick and Cory Wilson — said that while the district court’s “rushed schedule” was “questionable,” it didn’t reach the level of mandamus.

“We are particularly concerned by the district court’s sudden decision to expedite trial, its seeming indifference to the parties’ arguments, and its inconsistent comments about the need for extensive pretrial discovery,” the concurrence said, noting that the lower court had been “relatively inactive” in the case for five months after the hearing on the preliminary injunction, and set the trial date two days after the circuit said it would hear the case en banc.

“Despite our misgivings about the district court’s decisions, we cannot say that the rigorous criteria for mandamus are fulfilled,” Willett wrote. “The district court’s scheduling orders, although questionable, fall shy of showing a ‘persistent disregard of the Rules of Civil Procedure’ or a pattern of noncompliance that could justify mandamus relief.”

He urged the trial court to “further modify the schedule to set a reasonable trial date that does not sacrifice rigor for rapidity. Prompt resolution, while important, cannot come at the expense of painstaking resolution. This is an historic case that deserves a record assembled with utmost thoroughness and evenhandedness for the interests of both sovereigns.”

Judge Edith Jones, in a concurrence joined by Wilson, said that the transcript of the pretrial conference during which the trial date was set “persuades me that the court determined to rush to trial and, for whatever reason, to parallel this court’s en banc review.” Still, Jones said “reluctantly” agreed to not grant mandamus, but “would hold that the district court abused its discretion in its trial setting and pretrial deadlines.”

In another concurrence written by Judge Dana Douglas, some of the court’s more liberal members came to Ezra’s defense. “The record indicates that the district court simply complied with our precedent in suggesting that cases such as this should be tried expeditiously on the merits,” Douglas wrote, joined by Judges Carolyn Dineen King, Carl Stewart, Catharina Haynes, James Graves, Stephen Higginson and Irma Carrillo Ramirez, the largest group of judges on any of the separate opinions.

Douglas said that Texas’s push to delay the trial “appropriately gave the district court pause,” as the appeals court’s taking up of preliminary issues in the case “only serve to prolong a final determination on the matter as they weave their way through the courts of appeal.” She also said that parties weren’t “blindsided” by the quick trial schedule, as Ezra had previously said he planned to expedite the case.

“Thus, I concur in the judgment only and find nothing in the record to support the misgivings surrounding the district court’s decisions concerning its own docket,” Douglas concluded.

Some of the court’s most conservative members were part of two dissents, saying they would’ve paused the trial proceedings as the case went en banc. One dissent by Judges James Ho and joined by Judges Jerry Smith, Kyle Duncan, Kurt Engelhardt and Andrew Oldham said mandamus should’ve been granted “out of respect for the sovereign interests asserted by the State of Texas, and out of respect for our own authority as an en banc appellate court.”

Ho referenced Texas Gov. Greg Abbott’s recent determination that the state is experiencing an “invasion” at the southern border that criticized the Biden administration’s immigration policies. The judge said that mandamus is especially appropriate in cases with significant public consequence. “It’s hard to imagine a dispute of greater public importance than this one,” Ho wrote, pointing to other Republican governors and members of Congress backing Abbott’s statement.

He also sought to legally endorse a state’s ability to declare an invasion under Article I, section 10 of the US Constitution, which places some prohibitions on states’ powers. Ho disagreed with prior statements by the US Justice Department that only the federal government can determine if a state is being invaded, saying “that effectively means that a State is constitutionally prohibited from exercising its sovereign right of self-defense without federal permission.”

In a separate dissent, joined by the same judges who backed Ho’s opinion, Oldham similarly addressed Abbott’s declaration of an invasion. He said that, as the Biden administration and Texas clash over barriers at the border, “The result is a federalism standoff that far transcends this case.”

Oldham went further in his criticism of Ezra, claiming the judge “rejected objections before the defendant could even raise them,” quoting heavily from a pretrial conference in which Ezra had set the trial date and pre-trial deadlines.

“We cannot announce results first and hear arguments second,” Oldham wrote. “If we can agree on nothing else, we must be able to agree to things like the Federal Rules of Civil Procedure. To the otherwise-banal principles of appellate jurisdiction. And to the principle that pleadings must be filed before a district court denies them.”

The case is USA v Abbott, 5th Cir. en banc, No. 23-50632, 2/9/24