Judge Lynn Hughes of the Southern District of Texas is at it again. In the case of Miller v. Sam Houston State Univ., No. 19-20752 (5th Cir. 1/29/2021), Judge Hughes flat denied the Plaintiff any depositions, while granting summary judgment against the plaintiff. Worse, he made statement after statement expressing skepticism about the plaintiff’s case. I have written about Judge Hughes here and here. He often denies discovery to one or both parties. But, in this case, he seemed to focus his ire on the plaintiff.
At one early hearing, he insisted on dismissing two of the four defendants. The plaintiff had sued Sam Houston State University and its higher level entity, the Texas State University System. The Plaintiff also sued the University of Houston and its higher level entity, the University of Houston System, in a separate lawsuit. The judge told the plaintiff’s lawyer that she must dismiss two of the four, which two would she choose? Of course, that is very unorthodox way to dismiss two properly served parties. He then added the the “systems” were not important. All they did was make it harder for University employees to do their job.
As the early hearing progressed, Judge Hughes made other comments. Is there nothing the plaintiff has not complained about? He discussed Prof. Miller’s case, saying she seemed to be complaining about less pay and not getting tenure. He added,
“I have never thought about it, but I have had more tenure decisions than you can imagine working here. You wouldn’t think professors were litigious, but apparently they are.”
He specifically ordered that Plaintiff Miller be deposed at his courtroom. As the hearing drew to a close, Judge Hughes suggested consolidating the two lawsuits, the one against SHSU and the one against UH. Both parties objected. The judge replied to Miller’s counsel: “All right. I will get credit for closing two cases when I crush you.” When the lawyer resisted, Judge Hughes interjected:“How will that look on your record?”
Attending the Plaintiff’s Deposition
The judge then attended plaintiff Dr. Miller’s deposition. He participated in the deposition. He warned her that if she did not like his rulings, that is okay. This is a free country, he said. But, the Defendant has a right to to know exactly why she sued the defendant. He later lectured Dr. Miller when she tried to discuss her view of Supreme Court precedent. Meanwhile, Judge Hughes rejected repeated attempts by the plaintiff to take her own depositions.
The judge called for another hearing. The judge suggested the employer seek summary judgment. The plaintiff’s lawyer agued that they needed more discovery. She suggested the data provided by the defendant was inaccurate. Replied the judge, “I think you’re making that up.”
The employer did submit a motion for summary judgment. At the close of an oral hearing on the summary judgment motion, Judge Hughes allowed the plaintiff to depose a key witness, but only for two hours. The court then denied repeated motions for more discovery. He later granted the motion for summary judgment.
On appeal the Fifth Circuit was quite annoyed. The opinion starts with a general discussion that the appearance of fairness is important. Fairness, said the appellate court, is upheld by avoiding even the appearance of partiality. The court was very troubled by the court’s dismissal of claims sue sponte. There was no pending motion to dismiss claims against two defendants. There was no briefing on the issue until Plaintiff Miller submitted a motion for reconsideration. The Fifth Circuit found the motion for reconsideration to have some merit. It was simply unfair to force the plaintiff to make her arguments after the decision had already been made. The dismissal, said the court of appeals, appeared to rest on the lower court’s assertion that “systems don’t do anything.”
The court then pointed to the decision in McCoy v. Energy XXI GOM, LLC, 695 Fed.Appd’x 750 (5th Cir. 2017,), another Judge Hughes case. In that case, Judge Hughes again only permitted a deposition of the plaintiff. As in McCoy, it was reversible error to prevent one party from conducting full and fair discovery, said the Fifth Circuit panel.
The Plaintiff also asked that the case be transferred to a different judge, an extraordinary remedy. The appellate court granted her court. It found that Judge Hughes had from the outset, shown a lack of impartiality. See the decision here.
Anytime a court of appeals transfers a case to a different judge, you know they have lost faith in the most fundamental requirement of any judge, that he not show favor or partiality.