The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
En Banc Fifth Circuit Tells Judge Ezra to RTFM
"The case is REMANDED with instructions to vacate the preliminary injunction and for further proceedings consistent with the majority opinion of the court."
Last month I wrote about Judge David Ezra's worrying behavior in the Buoy Case. I won't even attempt to rehash the unusual hijinks in his court. Rather, for present purposes, it is enough to recount how Judge Ezra was perplexed about why the en banc Fifth Circuit reversed him. He cited "chatter" from "law professors" who doubted whether Judge Willett's opinion was actually a controlling majority opinion.
On Monday, the en banc Fifth Circuit finally issued the mandate in the Buoy Case, with a two-sentence message for Judge Ezra:
IT IS ORDERED and ADJUDGED that the district court's order granting a preliminary injunction is REVERSED, and the case is REMANDED with instructions to vacate the preliminary injunction and for further proceedings consistent with the majority opinion of the court. The stay pending appeal is DISSOLVED.
In other words, RTFM. No, not that RTFM. Rather, Read The Following Majority opinion. I have never seen a mandate like this before. Mandates are usually boring documents that contain nothing of substance. But there is a clear signal here
Short and succinct, the Fifth Circuit says loud and clear that there is a "majority opinion of the court." And it is Judge Willett's opinion. All members of the Fifth Circuit agree on that much. This should not have been difficult. Chief Judge Richman's concurrence refers to Judge Willett's opinion as the "majority opinion." Judge Douglas's dissent refers to Judge Willett's opinion as the "majority opinion." When all of the members of the court label an opinion a "majority opinion," it is a majority opinion. But that message did not get through to Judge Ezra. Now, perhaps, the mandate will make that clear.
Judge Ezra's confusion seems to stem from the relationship between Judge Willett's majority opinion, and the concurrences from Judges Richman and Ho. It is true that Judge Richman did not join Judge Willett in all regards. But Judge Ho thought the federal suit was defeated by the U.S. Constitution. Indeed, Judge Ho also found that the district court lacked jurisdiction. In any case where Judge Willett would rule for Texas, so would Judge Ho. The upshot is that a majority of the en banc court said a PI cannot be granted. That much was clear in July, and it is crystal clear today. Judge Ezra should promptly issue a judgment in favor of Texas, and let Solicitor General Prelogar file her certain-to-be-granted cert petition so it can be granted before the inauguration. Move along.
Again, for all the outrage about rogue judges in Amarillo and Fort Worth, the eyes of Texas should be upon Judge Ezra.
