In United States v. State of Texas, No. 23-50632 (5th Cir. Feb. 13, 2024), the Fifth Circuit – which voted to rehear the USA case to block Texas from erecting a floating barrier with Mexico – denies a stay of trial proceedings in the district court while the case is pending on appeal en banc; the vote is 13-5 The court issued no single opinion, but judges filed five opinions (none joined by a majority) expressing divergent views on the stay.
“Two days after we ordered rehearing en banc, the district court held a status conference with trial counsel. The district court stated that it would try the case ‘soon, very soon, because there is no need for this to linger on.’ It accordingly set a trial date of March 19, two months away. It also set several pretrial deadlines, requiring, for example, disclosure of expert witnesses by January 26, completion of general discovery by February 16, completion of No. 23-50632 5 expert discovery by February 29, and filing of proposed findings of fact and conclusions of law by March 5.” (Willett, J., concurring in denial of a stay).
Judge Willett (for five judges), concurring, finds that “the district court’s rushed schedule, while questionable, is not mandamus-able . . . . 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.” Judge Willett nevertheless would exercise the en banc court’s supervisory authority to demand more accountability by the district court. “[W]e exhort the district court to consider, at long last, both parties’ explanations as to what they regard as reasonable dates for these and other pretrial deadlines and 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 Jones (joined by Judge Wilson), concurring, expresses doubt about the case going to trial prior to an en banc ruling: “if the district court thought that going to trial during en banc briefing by the parties and preparation by this court’s judges somehow expedites ultimate resolution of this case, it makes no sense.” Despite that the scheduling order was (in Judge Jones’s view) an abuse of discretion, she would have limited the relief to an “order for a further scheduling conference,” as suggested by Judge Willett.
Judge Douglas (for six judges), concurring, finds no error in the expedited trial schedule and finds fault with what it sees as Texas’s procedural maneuvering. “[T]he parties were not blindsided by the district court’s decision to quickly move this case to trial on the merits. In its September 2023 order granting a preliminary injunction, the district court indicated that it ‘intend[ed] to expedite this matter’ to resolve the full merits in ‘the shortest time possible.’ Preceding that order, the district court permitted extensive discovery. Texas itself, in opposing the preliminary injunction, stressed the urgency with which it seeks to remedy the ‘invasion’ at the border. Yet now, Texas seeks to prolong the termination of these proceedings by seeking intervention from this court at the eleventh hour without so much as awaiting the district court’s own order on the motion to stay.”
Judge Ho (for five judges), dissenting, would have granted the stay to protect the integrity of the en banc proceeding. “Just two days after we announced that we would rehear this appeal en banc, the district court suddenly and abruptly announced an expedited trial schedule. Under this new schedule, the district court would presumably enter final judgment while our en banc review is pending. This is a transparent effort to moot our en banc proceedings.”
Finally, Judge Oldham (for the same five judges), dissenting, discounts the urgency of a trial in the district court and stresses adherence to the deadlines provided by the Federal Rules of Civil Procedure: “Rule 12, Rule 26, Rule 33, Rule 34, Rule 36, and several others set time periods for disclosures, discovery, and the orderly administration of a trial docket. Those time periods obviously can be changed by agreement or for good cause. But they cannot be discarded sua sponte in the face of pending unread motions and unanswered operative pleadings. And they certainly should not be discarded in a case of monumental importance to our federal system, the rights and obligations of co-sovereign governments, and an international border crisis.”
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