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U.S. Court of Appeals For The Fifth Circuit - Marc Elias Sanctions - June 2021
U.S. Court of Appeals For The Fifth Circuit - Marc Elias Sanctions - June 2021
No. 20-40643
Plaintiffs—Appellees,
versus
Defendant—Appellant.
*
Judge Haynes concurs in part and dissents in part: as she stated in the original
ruling, she disagrees with granting the sanctions. Thus, she would grant reconsideration in
full rather than only to the junior attorneys.
1
The motion for reconsideration argues, and the Secretary agrees, that the
mitigating factor of relative inexperience should be considered with respect to the junior
attorneys. See In re Ramos, 679 F. App’x 353, 358 (5th Cir. 2017). We agree. The motion
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No. 20-40643
I.
The sanctions imposed in this case were justified and supported by
our rules and precedent. First, sanctions were appropriate because
appellees’ counsel violated local rules. We are not required to find bad faith
for reconsideration is granted and sanctions are vacated as to attorneys Lalitha D. Madduri,
Daniel C. Osher, and Stephanie I. Command. However, the motion to reconsider is denied
and sanctions will remain in place, as issued originally, for the more senior attorneys,
partners Marc E. Elias and Bruce V. Spiva, who each has nearly thirty years’ legal
experience, and for Skyler M. Howton, who has at least eight years’ experience and who
was the attorney who signed both the September and February motions to supplement.
2
In brief, the relevant procedural history is as follows. The Texas Secretary of
State filed a notice of appeal on September 28, 2020. On the same day, the Secretary filed
an emergency motion for a temporary administrative stay of the district court’s preliminary
injunction and a stay pending appeal. Our court granted the motion for a temporary
administrative stay and ordered expedited briefing regarding the motion for stay pending
appeal. On September 29, 2020, appellees filed an opposed motion to supplement the
record, which our court denied. On September 30, 2020, the panel issued its opinion
granting the emergency motion for stay pending appeal. A briefing notice was issued as to
the merits of the case. Relevant here, appellees filed their brief on February 10, 2021, along
with an opposed motion to supplement the record. The new motion to supplement the
record was nearly identical to the motion to supplement the record that had been denied in
September and made no mention to that earlier adverse ruling.
2
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when imposing sanctions for violations of local rules. E.g., In re Goode, 821
F.3d 553, 559 (5th Cir. 2016). Our court’s local rules permit us to discipline
“any member of the bar of this Court for failure to comply with the rules of
this Court, or for conduct unbecoming a member of the bar.” 5th Cir. R. 46
I.O.P., Disciplinary Action.
Appellees’ counsel wrote their February motion to supplement as if it
were the first of its kind even though it was nearly identical to the motion they
had previously filed, which had been denied. We, the motions panel who
received the duplicative motion, construed it as a motion for reconsideration
of the original single-judge order under our local rules 27.2 and 40—but
because of its untimeliness, it violated those rules. See 5th Cir. R. 27.2, 40.
In their instant motion for reconsideration, appellees’ counsel insist
that they thought that the new motion would go to a different panel—the
merits panel. 3 See Mot. at 8 (“Movants now understand that they picked the
wrong vehicle to ask the merits panel to consider the question of
supplementing the record . . . .”). The motion also discusses at length how a
motions panel ruling is not the law of the case, and thus, a merits panel may
grant relief denied by a motions panel.
This discussion is a red herring—of course a merits panel may
reconsider a previous ruling by a motions panel. See, e.g., Tex. Democratic
Party v. Abbott, 978 F.3d 168, 176 (5th Cir. 2020) (“[U]nder our circuit’s
procedures, opinions and orders of a panel with initial responsibility for
resolving motions filed in an appeal are not binding on the later panel that is
assigned the appeal for resolution.”), cert. denied, 141 S. Ct. 1124 (2021).
3
In fact, motions are not received by the merits panel unless and until a case has
been assigned to the oral argument calendar. See 5th Cir. R. 27 I.O.P., Motions After
Assignment to Calendar.
3
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4
If a party seeks to have the merits panel reconsider an issue, the party must
disclose relevant rulings that bear on its request. Even the practice guide referred to in the
motion for reconsideration states that after an initial motion to supplement the record on
appeal has been denied, counsel “may renew [counsel’s] request based on changed
circumstances.” David G. Knibb, Federal Court of Appeals Manual § 28:18 (7th ed. Mar.
2021 update). This advice assumes that the advocate has demonstrated candor to the
tribunal and that they are making arguments in good faith about changed circumstances.
In sum, a party who disagrees with a motions panel’s ruling can move for
reconsideration within the time limits outlined in our local rules or can wait until the merits
panel takes over and request that the merits panel reconsider the motions panel’s ruling. If
the party chooses the latter course, the motion to reconsider should outline the reasons
why the party thinks the merits panel should take a different course, and—as an absolute
necessity—refer to the motions panel’s ruling that the party would like reconsidered.
Moreover, if a motion intended for the merits panel is inadvertently filed early, as
appellees’ counsel suggest was the case here, the motions panel receiving it would be much
more likely to construe it as a motion for reconsideration intended for the merits panel if
the motion indicates how the motions panel ruled and why the party believes that the merits
panel should rule differently.
4
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entered just a few months earlier in the same appeal is exactly nil.” Mot. at
19. That is incorrect, especially where there are similar appeals all filed
against the same party as was the case here. 5 More importantly, this
argument is beside the point. It was appellees’ counsel’s duty, when re-
urging a previously denied motion, to note the previous denial. Appellees’
counsel should have withdrawn their misleading and redundant motion to
supplement the record when the error was pointed out to them by their
opposing counsel.
II.
Second, and in the alternative, the sanctions we imposed were
justified under 28 U.S.C. § 1927, which states:
5
There were at least six appeals besides this one—nos. 20-50667, 20-50690, 20-
50793, 20-50867, 20-50868, and 20-50907—docketed against defendant Secretary Ruth
Hughs between August and October of 2020.
5
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6
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6
The brief was signed by Skyler M. Howton. Marc E. Elias was the lead attorney,
and Stephanie I. Command was also on the signature block.
7
The Secretary moved to strike the addendum, a motion that was ultimately denied
as moot when our court issued its opinion reversing the district court’s denial of the
Secretary’s sovereign immunity defense and remanding with instructions to dismiss for
lack of subject matter jurisdiction. See Tex. Democratic Party v. Hughs, No. 20-50667, 2021
WL 2310010, at *1 n.1 (5th Cir. June 4, 2021).
7
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8
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Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Shawn D. Henderson, Deputy Clerk
504-310-7668
Ms. Stephanie Command
Mr. Todd Lawrence Disher
Mr. Marc Erik Elias
Ms. Skyler Howton
Ms. Lalitha Madduri
Mr. Nathan Ochsner
Mr. Daniel C. Osher
Mr. Bruce Van Spiva
Mr. Judd Edward Stone II
Mr. Patrick K. Sweeten
Mr. William Thomas Thompson