The Volokh Conspiracy
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Does the Fifth Circuit permit en banc review of interim rulings? Last year, Judge Willett said the answer was no, citing "nonpublic 'internal court policies." But those rules have changed. In January 2020, the Fifth Circuit revised those "internal court policies" through the new internal operating procedures. The IOP now states, "The [Federal Rules] covering rehearings en banc do apply to interlocutory orders of this Court issued pursuant to [Rule] 8."
The Texas Attorney General has become–as far as I know–the first litigant to rely on this new IOP. The document is styled, a Motion in the En Banc Court to Stay Injunction Pending Appeal. (Update: Apparently, the clerk bounced the initial motion because of the unusual caption. A revised document is simply styled, Petition for Rehearing En Banc.) And Texas chose a huge case to file in: Whole Woman's Health v. Paxton, No. 17-51060 (5th Cir.). This case considered Texas's prohibition of "dismemberment abortions."
Let's consider the chronology.
- The Fifth Circuit decided June Medical v. Gee on September 26, 2018, before the dismemberment case was argued.
- The Supreme Court granted a stay on February 7, 2019.
- And on March 13, 2019, the panel held the dismemberment case in abeyance for June Medical.
- A petition for certiorari was filed in June Medical in April 2019.
- Cert was granted on October 4, 2019.
June Medical was decided on June 29, 2020. At that point, more than eighteen months had elapsed from oral arguments. Shortly after June Medical was decided, Texas sought a stay of the injunction pending appeal.
On August 22, the panel denied the stay of the injunction pending appeal. Judge Willett dissented, and would have granted the injunction. He agreed with the Eighth Circuit, and Justice Kavanaugh, that the Chief's opinion in June Medical was now the controlling precedent:
I would grant the State of Texas's motion to stay the injunction.
The Supreme Court recently divided 4-1-4 in June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020). The opinions are splintered, but the takeaway seems clear: The three-year-old injunction issued by the district court in this case rests upon a now-invalid legal standard. See Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020) (explaining that June Medical upended the previous cost-benefit balancing test for reviewing the constitutionality of abortion restrictions); June Med. Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) ("Today, five Members of the Court reject the Whole Woman's Health cost-benefit standard.").
I blogged about Willett's dissent here.
Judge Dennis wrote a separate opinion. He contended that Whole Woman's Health remains the controlling standard. Dennis's opinion concludes with the line, "Carl E. Stewart, Circuit Judge, concurs." Usually, joins are noted at the beginning of an opinion, not at the end. It isn't clear if Stewart concurred with Dennis's opinion, or if he concurred in the justification for the denial of the stay. If Stewart joined Dennis's opinion, then the panel has set a new circuit precedent about the scope of June Medical. And the panel would have created a clean circuit split with the Eighth Circuit. I this reading of Dennis's opinion makes en banc review far more likely.
Here is an excerpt from Texas's motion:
In November 2017, the district court below enjoined the enforcement of an important Texas abortion regulation. Texas filed a notice of appeal the same day. This appeal has been pending ever since. Though the Panel assigned to this case heard oral argument almost two years ago, it has not yet issued its decision, and it has denied Texas's motion to stay the injunction below pending resolution of this appeal. Whether a State may enforce a duly enacted law is a question of exceptional importance, see Fed. R. App. P. 35(b)(1)(B), and the Panel's published order denying a stay conflicts with June Medical Services v. Russo, 140 S. Ct. 2103 (2020), see Fed. R. App. P. 35(b)(1)(A). Furthermore, the Panel's order creates an acknowledged circuit split with the Eighth Circuit's decision in Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020) (per curiam). Therefore, pursuant to Rules 8 and 35(a), Texas now asks the en banc Court to stay the district court's injunction and allow Texas to enforce its law immediately.
Texas now asks the en banc Court to stay the district court's injunction immediately. As Judge Willett explained, a stay is plainly warranted. First, Texas is very likely to prevail in this appeal, because June Medical confirms that the district court's injunction is unlawful. Second, the injunction below irreparably harms Texas, by preventing it from enforcing its law and requiring it to tolerate the "brutal and inhumane procedure," Gonzales, 550 U.S. at 157, of live-dismemberment abortion. Third, the equities strongly favor Texas, as plaintiffs face no harm of their own, and the public interest supports the immediate enforcement of Texas law.
If the en banc Fifth Circuit grants a stay of the injunction pending appeal, Whole Woman's Health would likely seek a stay from the Supreme Court. That is, Whole Woman's Health will seek to reimpose the injunction. In general, the Roberts Court does not like granting an injunction. We will see, perhaps before the election, what the Chief thinks about June Medical. Will Whole Woman's Health II formally overrule Whole Woman's Health I? Stay tuned.