Those of us who practice within the boundaries of the Fifth Circuit (Texas, Louisiana and Mississippi) have known for some time that the Fifth Circuit has become the most aggressively conservative appellate court in the country. In fact, when the U.S. Supreme Court overturned Roe v. Wade in 2022, that was an appeal from a Fifth Circuit decision. That decision is now known as Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). In the coming Supreme Court term, the Supreme Court will hear five more appeals from the Fifth Circuit.

In the last term, the Supreme Court overturned the Fifth Circuit seven times. Six of the Circuit’s 17 judges are Trump appointees. Says Steve Vladeck, a former law professor at University of Texas and now at Georgetown Law, decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall.” Or, as I said in one blog post, you know you’re conservative when you are even too conservative for the very conservative Supreme Court.

One observer, Akhil Reed Amar, a law professor at Yale Law School, noted that appellate court justices who want to get promoted to the Supreme Court will often do that by becoming more conservative, not less. That brings to mind one Judge Ho at the Fifth Circuit. In a remarkable turn of events, he actually wrote a concurring opinion to his own majority opinion. See ABA Bar Journal report for more information.

The Fifth Circuit Court of Appeals has been overruled a few times in the past few years. You know a court is too conservative when it is too conservative even for the very conservative U.S. Supreme Court. In the latest example, a group of five plaintiffs filed suit in the Western District of Louisiana objecting to the Biden’s administration unofficial pressuring of social media to deal with false content about the pandemic in 2021. The various platforms did indeed moderate their content, to make it more accurate. The five plaintiffs sued saying that that moderation infringed on their free speech rights.

In Murthy v. Missouri, No. 23-411 (June 26, 2024), the Supreme Court went beyond overturning the Fifth Circuit’s opinion. The opinion, written by Justice Barrett, also found the Fifth Circuit had glossed over the complexities of the case. That is judge-speak for the Fifth Circuit engaged in a fundamentally flawed analysis. The Fifth Circuit opinion, issued per curiam, was issued by a panel including Judges Clement, Elrod and Willett.

Standing

The higher court focused on standing. It found the five plaintiffs lacked standing. The plaintiffs included three individuals and two states. None of them, said the court, sought to enjoin the moderation used by the various platforms. Instead, the plaintiffs focused solely on actions taken by the Federal government.

The Fifth Circuit relied on factual findings by the district court. Some of those findings of fact were “clearly” erroneous. One of those erroneous findings was that the U.S. government and platforms had an “efficient report-and-censor relationship.”

Another error consisted of the Fifth Circuit treating the plaintiffs, the defendants and the platforms as a unified whole. But, precedent shows the court should have assessed standing for each claim against each defendant. That showing would entail showing that a particular defendant pressured a particular platform to censor a particular topic before that platform censored a particular plaintiff’s speech.

See the Supreme Court’s opinion here. See the ABA Bar Journal report on that opinion here.

Summary judgment is the employer’s go-to defense to a discrimination lawsuit. For a few decades now, many Federal judges have used summary judgment as a tool for clearing his/her docket. But, in Dabassi v. Motiva Enterprises, No. 23-20166 (5th Cir. 7/16/2024), the court of appeals reversed the district court’s grant of summary judgment. In this case, Dean Dabassi started working for Motive in 2014 as a 48 year old. By 2015, he as placed on a PIP. Yet, he had also been awarded the “President’s Award” three times. In 2018, his supervisors told him they wanted to “rotate younger people” into his department. Months later, in 2019, he was replaced by a 33 year old female. Debase went to a lateral position, losing no pay or benefits. But, the new position was less prestigious.

In 2019, Debassi was placed on a second PIP. Management said he reacted very loudly and with animated hand gestures when told of the new PIP. Management fired him the next day. At the district court level, the court granted the employer’s motion for summary judgment. The judge parsed the different events: the replacement employee, the first PIP, the second Pip and then the termination.

Consider All the Facts

On appeal, the plaintiff lawyer argued a court should examine all the evidence together and not compartmentalize it. The Fifth Circuit agreed. The higher court said, “It is necessary for the facts allegedly supporting a claim to be evaluated in their entirety.” The court rejected a rigid, mechanical application of the step-by-step analysis of McDonnell-Douglas. The court noted the desire of management to place younger personnel into Debassi’s department. The plaintiff was fired just months after management told him they desired to place younger personnel into his department.

The court also noted the preference of management for “early career” employees. The employer argued “early career” actually included older persons who were early in a second career. But, the appellate court rightly noted that it was up to a jury to determine how management meant the phrase “early career.”

Too many district courts use summary judgment as a way to reduce their caseload. And, among those courts, many of them do indeed apply the McDonnell-Douglas in a formulaic fashion, which tends to compartmentalize the evidence. Summary judgment is intended to screen out cases with no factual basis and not to screen out cases which need factual determinations.

See the decision here.

DEI (Diversity, Equity and Inclusion) is under a magnifying glass in many sectors, one of which is employment. Joshua Young, a correctional officer in the Colorado prison system filed suit after he was required to attend DEI training. He alleged the DEI training left him feeling marginalized. The training discussed “white supremacy” and “white exceptionalism.” He said the DEI training left him believing white persons were unable to treat minorities fairly. His lawsuit alleged the training fomented a “hostile” workplace for white employees.

DEI training has become common in major companies. By 1976, more than 60% of large companies required management to undergo unconscious bias training. For years, that training essentially focused on the biases most people hold. But, after the killing of George Floyd, the training increasingly adopted an “anti-racism” approach. This new approach emphasized how to challenge systemic bias.

Anti-Racism Training

Since 2020, that DEI training has been implemented by more and more companies. Unconscious bias training and anti-racism training have many common elements. But, anti-racism training differs in that it gets into America’s history of slavery, segregation and discrimination. It argues that American society continues to favor white people.

But, of course, in singling out white people, anti-racism training suggests its own version of discrimination, says one expert, Frank Dobbin, a Harvard sociologist. (Certainly, he is correct. Any focus on just one ethnic group suggests the possibility of discrimination. The key would be whether that focus is justified by non-discriminatory motivations. Could such singling out – given the right circumstances – provide evidence for a case of anti-white discrimination? Absolutely).

Prof. Dobbin says unconscious bias training has not resulted in a more diverse work force. He also says that anti-racism training has not produced positive results. People simply do not respond well to that training, even if it is correct.

59 Lawsuits

There are currently 59 lawsuits against DEI training across the country. Some have been dismissed, but others have not. Those lawsuits do shape the ongoing DEI training. Joshua Young’s lawsuit was dismissed, because he did not allege the discrimination was “severe or pervasive.” But, Mr. Young plans to re-file his lawsuit with a better statement of the facts. In 2020, then Pres. Trump signed an order prohibiting DEI training among Federal agencies and Federal Contractors. President. Biden then overturned that order.

Kenji Yoshino, at New York University, says it is possible to discuss America’s history of slavery and discrimination without suggesting white people are inherently discriminatory. (Of course, it is. But, that would be a difficult exercise and it incurs much risk for a company seeking to avoid accusations of anti-white bias). See the ABA Bar Journal here for more information.

In a recent decision, the Fifth Circuit has suggested an odd practice. In Bunker v. Dow Chemical, No. 24-20046 (%th Cir. 8/7/2024), Ms. Bunker filed her EEOC charge, but she did not check the block at the top for “FEPA.” It is important to check that block to indicate you, as the Charging Party wish the charge to be sent to the state agency for investigation. There are two agencies that investigate discrimination in Texas: The Equal Employment Opportunity Commission and TWC’s Civil Rights Division. When you check that word “FEPA,” you ensure the charge will be filed with the Civil Rights Division, as well as with the EEOC. If you file the Charge also with the CRD, you can then file suit under state court, if you wish.

But, Ms. Bunker did not check the FEPA box. Yet, she filed her lawsuit in state court. So, since she did not file her Charge with the State agency, she could not then file suit in state court. Her lawsuit was dismissed.

Lower-Left Box

We might think she would still be ok, however. Because in the lower left-hand side of the Charge, there is also this statement: “I want this Charge filed with both the EEOC and the State or local Agency, if any.” The Employee (known as the “Charging Party”) then signs below that statement, apparently indicating she does in fact wish the Charge to be filed with both the Federal and the State agencies. But, no, Judge Clement in Bunker says the Charging Party must also mark that statement somehow.

As can be seen below, signing below a statement that the Charging Party wants the Charge to be filed with both the State and Federal agencies would seem to suffice. There is no box to check. You simply sign below the statement. But, Judge Clement said a person needs to mark this sentence somehow.

Say what? …. Judge Clement did not indicate in what way a Charging Party ought to mark this sentence. Her decision does not make a lot of sense. See the decision here.

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

Force of Arms

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

Trial by Peers

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

Judicial Independence

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

Proportional Sentencing

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

All Free Men

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

In the age of social media, it is tempting for trial lawyers to communicate in some way with potential juries. But, lawyers who succumb to that temptation will learn the lesson one Georgia lawyer learned. Both before and during the start of a trial in Gwinnett County, Georgia, the plaintiff lawyer posted videos explaining “three lies we actively have to tell the jury.” The videos explained such information as defense attorneys are paid by the insurance company and that the defense made settlement offers, but would ask the jury to award the plaintiff nothing.

The lawsuit, styled as Cartagena v. Medford, No. 20C-4779-4 (Georgia District.Ct. 2023), concerned a car crash. The lawyer made these posts on TikTok and Instagram. The lawyer had 130,000 followers on TikTok and over 30,000 on Instagram.

$1.5 Million in Damages

The jury found in favor of the plaintiff and awarded $1.5 ,million in damages. There was nothing to indicate that any person sitting on the jury actually saw these posts. But, the state district court was still unimpressed. The court held that there was a “substantial likelihood” of this information materially prejudicing the out come of the trial. The Judge granted the Defense motion for a new trial. The judge vacated the jury award.

I think by now all trial attorneys understand that members of the jury will Google a case, the lawyers, etc. after being seated on a jury. That trial lawyer surely understood the risk of posting that sort of information. Too, it is law school exam question that a lawyer may not tell a jury about settlement negotiations. See Texas Bar Journal report for more information here.

I have written about Judge Lynn Hughes of the Southern District of Texas here and here. He has earned a reputation as a Judge who consistently makes anti-plaintiff comments in court, who makes disparaging comments about minorities – and even once barred a female attorney from his court room apparently simply passed on her name. His frequent refusal to allow discovery, or to severely restrict discovery is just baffling.

I was at the Fifth Circuit once for oral arguments. The case ahead of mine concerned an appeal from an order by Judge Hughes allowing no discovery. The odd thing to me as I waited and listened was that the three-judge panel expressed no surprise at such a strange order. The Fifth Circuit judges were not at all surprised by Judge Hughes’ inexplicable order.

Investigation

He has been under investigation by the Fifth Circuit Court of Appeals for some time. But, in a recent order, the Fifth Circuit announced that it would take no action on that pending complaint. Since, Judge Hughes has taken senior inactive status and relinquished his cases. Senior inactive status means he will hear no more cases.

Apparently Judge Hughes made yet another disparaging comment about female attorneys. Remarking on the appearance of a female attorney, he said in court, “It was a lot simpler when you guys wore dark suits, white shirts and navy ties. We didn’t let girls do it in the old days.” Later, Judge Hughes said the remark was about FBI agents and how they used to dress, not female attorneys. In a footnote, the Fifth Circuit described the remark as “demeaning. inappropriate and beneath the dignity of a federal judge.”

Indeed. We would also add, bizarre. See ABA Bar Journal report here for more information.

Twitter, now known as “X” has provided an avenue for many people to communicate with the wider world. But, too much communication can be a bad thing. Attorney Darlene Jackson in Washington, D.C. learned that lesson the hard way. Attorney Jackson filed suit on behalf of a passenger of the D.C. train in 2015. The train had an accident. Many passengers filed suit. The lawsuits were consolidated in Federal court in 2015. The court stayed some of the lawsuits, while resolving others. Ms. Jackson’s case was among those which were stayed. Ms. Jackson’s client then died in 2018.

Substitution

Attorney Jackson filed a defective Motion to Substitute parties. Trying to fix the error, Ms. Jackson filed more motions. She then filed a motion seeking to stay the lawsuit, even though it was already stayed. The court issued an order telling her not to file any more motions. She then filed another motion, saying she no longer had a client and was, therefore, no longer part of the lawsuit.

A second lawyer, Patrick Regan, represented many of the passengers. Regan offered to represent Ms. Jackson’s deceased client pro bono. In 2019, the court allowed the substitution of attorney Patrick Regan for Darlene Jackson in Jackson’s lawsuit. Soon afterward, Regan reached a settlement with the D.C. train authority. As part of the settlement, the Defendant agreed to pay Ms. Jackson $5,000 as her attorney fee. They indicated it would take some 30 days to issue the check.

The Tweet

A couple of weeks later, Ms. Jackson tired of the wait. She sent a tweet which displayed excerpts of the settlement agreement, emails from the attorney for the train authority, a picture of the train authority’s attorney, a news article about the death of her client, and ended with: “Where’s MY CA$H?” Ms. Jackson wanted her $5,000. Ms. Jackson tagged President. Trump, Melania Trump and Sen. Marsha Blackburn on the tweet. The tweet also tagged several news outlets. Ms. Jackson later said, she was anxious to receive her payment. (That is odd. Most experienced attorneys understand that public entities typically require weeks to issue a settlement check).

The Defendant field a motion with the court. The court then held a show cause hearing regarding her violation of a court order. The court did not discipline Ms. Jackson, but referred her to the Washington D.C. grievance committee.

Ms. Jackson did not cooperate with the committee. The bar association suspended her from the practice of law. That suspension was then affirmed on appeal to the D.C. Court of Appeals. See that decision in In Re Jackson, 300 A.3d 747 (D.C. Ct.App. 2023) here.

Sometime back, I met with a young man about his work situation. He was told by his boss to do some things that the worker believed would violate internal policies. Every work place has rules unique to that work place. We describe those rules as internal rules or policies. The worker was essentially telling me he was enforcing the rules, even if his boss was not.

Well, I had to tell him that those rules are not binding on the employer. The employer can change them. Even in a large national corporation, the boss is still the “employer.” The boss can ignore those rules. What if violating those rules places a worker at risk of physical harm? For example, if you work in a warehouse and the rule is never climb a ladder without a co-worker holding the bottom of the ladder. What if the supervisor one day says get a box down from the top shelf now, quickly, a customer is waiting? In effect, the boss is saying do not stop to find a co-worker to hold the ladder. Do you do what the boss tells you?

OSHA

If the safety of a worker is involved, then that violation might involve OSHA (Occupational Safety & Health Administration) rules. But, otherwise, in an at-will state like Texas, the worker cannot say no. The only time a worker can say no in Texas is if s/he is asked to break a criminal law.

Even if violating the company’s internal rules also involves a possible OSHA violation, the worker still must respect his employer. If a worker refuses to follow an order from her/his boss, the worker will be accused of insubordination. So, in the same example, if the order from the boss did violate an OSHA rule, the worker cannot then refuse to climb the ladder without a co-worker holding the ladder. Since, if the worker refuses to climb the ladder, then he has been insubordinate. An employer can fire a worker for insubordination.

It may not be fair that the worker has so little control over acts that be unsafe. But, as I tell many folks, if you want fairness, if you want some control over your work, then form a labor union. Otherwise, in an at-will state, you have to do what the boss says.