Case: 20-40643 Document: 00515920054 Page: 1 Date Filed: 06/30/2021

United States Court of Appeals

for the Fifth Circuit

No. 20-40643

Texas Alliance for Retired Americans; Sylvia Bruni;

DSCC; DCCC,

Plaintiffs—Appellees,

versus

Ruth Hughs, in her official capacity as the Texas Secretary of State,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas
USDC No. 5:20-CV-128

Before Clement, Elrod, and Haynes, Circuit Judges.

Per Curiam: *
IT IS ORDERED that the motion to reconsider sanctions is
GRANTED in part 1 and DENIED it in part.

*
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

In our March 11, 2021 order, we granted the Secretary’s motion to

sanction appellees’ counsel. 2 We imposed sanctions because appellees’
counsel violated their duty of candor and our local rules by filing a duplicative
motion to supplement the record, without making any reference to the fact
that a previous and nearly identical motion to supplement the record had
already been denied. Appellees’ counsel have now retained their own
counsel regarding the sanctions order and, through their counsel, move for
reconsideration of the imposed sanctions. We have carefully studied the
motion for reconsideration, the response, and the reply.

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.

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No. 20-40643

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.

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No. 20-40643

However, to the extent such reconsideration is done on a party’s motion, the

procedural posture should be indicated to the merits panel by mentioning the
previous ruling and making a case for a different ruling. As we stated in our
March 11 Order, there was and is “no legal basis to support Appellees’ post
hoc contention that motions to supplement the record apply only to one stage
of an appeal.” That is, unless and until the merits panel changes course on
the earlier motions panel’s order, the motions panel’s order remains
binding. 4
Moreover, the fact that appellees’ counsel thought that the motion
would be received by the merits panel shows that there was all the more reason
for candor, as the merits panel’s composition may be entirely different from
the motions panel’s composition, and it would have been critical to inform
the merits panel of the previous adverse ruling and why counsel thought that
it was wrong. The motion for reconsideration filed on behalf of appellees’
counsel asserts that “the chance that this Court would not ‘learn’ of an order

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.

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No. 20-40643

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:

Any attorney or other person admitted to conduct cases in

any court of the United States or any Territory thereof who
so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.
Our caselaw provides multiple formulations of the standard. Compare Lyn-
Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 291 (5th Cir. 2002) (“All
that is required to support § 1927 sanctions is a determination, supported by
the record, that an attorney multiplied proceedings in a case in an
unreasonable manner.”) (citing Browning v. Kramer, 931 F.2d 340, 344 (5th
Cir. 1991)), with Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir.
1998) (imposing sanctions under Section 1927 “requires that there be

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.

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No. 20-40643

evidence of bad faith, improper motive, or reckless disregard of the duty

owed to the court”) (citing Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995)).
Even under our strictest articulation of the standard, “reckless
disregard of the duty owed to the court” is a sufficient basis to impose
sanctions. See Edwards, 153 F.3d at 246. Here, at the very least, appellees’
counsel recklessly disregarded their duty to the court by failing to
demonstrate candor to the court both in their motion to supplement the
record and in their merits brief submitted at the same time. In both, they
failed to disclose that the motion to supplement had been previously filed or
that it was denied. In their merits brief, appellees’ counsel disclosed every
relevant procedural ruling in the case except for their previously denied motion
to supplement.
This omission is made more concerning by the context discussed in
the Secretary’s response to the motion to reconsider sanctions. There, the
Secretary points out that in the merits brief filed by appellees’ counsel, they
inserted material that was not even covered by their motion to supplement—
namely post-complaint conduct by the Secretary that was never before the
district court. That is, even if we had granted their motion to supplement,
the inserted material still would have been extraneous to the record.
The Secretary notes that the duplicative motion to supplement and
simultaneous insertion of non-record evidence into the merits brief was not
an isolated incident of misconduct. Rather, it followed a troubling pattern
that emerged in this and a related appeal—a pattern in which appellees’
counsel resorted to inappropriate methods to insert non-record evidence into
the appeals.
Back in September 2020, as this order discusses, the motion to
supplement the record was denied by this motions panel. Then, appellees’
counsel took a different tack in a related appeal, Texas Democratic Party v.

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No. 20-40643

Hughs, No. 20-50667. In that case, they unilaterally filed an addendum to

their merits brief containing new, non-record material. Despite evidently
understanding in this case that a motion to supplement the record was the
proper vehicle for adding non-record material, counsel in that case did not
file such a motion and instead merely sought “judicial notice” in a footnote.
See Brief of Appellees Tex. Democratic Party at 25 n.5, Tex. Democratic Party
v. Hughs, No. 20-50667 (5th Cir. Dec. 16, 2020). 6 Our precedent of course
establishes that parties cannot seek judicial notice as an end-run. See Bd. of
Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417 n.4 (5th Cir. 2012) (“[A] party
may not avoid the rule against supplementing the record with a document not
before the district court by requesting that the appellate court take judicial
notice of the document.”). 7
Then, in this case, and unlike in Texas Democratic Party v. Hughs, No.
20-50667, appellees’ merits brief did not identify this information as
evidence that had never been presented to the district court. Nor did the
brief offer a footnote attempting to justify the insertion via judicial notice. It
appears that appellees’ counsel’s misunderstanding of the rules curiously
increases when, following the rules, they fail to get what they want.
* * *
The motion for reconsideration is GRANTED in part and sanctions
are VACATED for attorneys Madduri, Osher, and Command. The motion

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).

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No. 20-40643

for reconsideration is DENIED as to attorneys Elias, Spiva, and Howton. It

is SO ORDERED.

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 Case: 20-40643 Document: 00515920064 Page: 1 Date Filed: 06/30/2021

United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130

June 30, 2021

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 20-40643 TX Alli for Retd Amer v. Hughs
USDC No. 5:20-CV-128

Enclosed is an order entered in this case.

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