fifth circuit Archives - Home Safety Tech Pros

Trump-appointed judge appears to mock Kamala Harris

homesafetytechpros — Sat, 09 Nov 2024 03:42:35 +0000

Inset: Democratic presidential nominee Vice President Kamala Harris speaks at a campaign rally at Little Chute High School, Friday, Nov. 1, 2024, in Little Chute, Wis. (AP Photo/Alex Brandon). Background: U.S. District Judge Terry A. Doughty (YouTube).

A federal judge appointed by Donald Trump appears to have mocked Vice President Kamala Harris on Friday in an order related to a long-running and controversial social media censorship case.

“We now consistently proceed — burdened by what has been,” U.S. District Judge Terry A. Doughty wrote in the order, an apparent reference to one of the failed presidential candidate’s trademark and oft-repeated stump speech lines: “unburdened by what has been.”

Later in the order, the court also muses about “regime change” and how Robert F. Kennedy, Jr. might soon find himself in charge of a federal public health agency — calling that eventuality “relevant” and “wild.”

In the underlying case, Republican attorneys general in Louisiana and Missouri sued the Biden administration over a policy encouraging social media platforms to remove COVID-19-related misinformation — arguing that those requests violated the First Amendment.

On Independence Day in 2023, the district court issued a 155-page opinion and order that likened the Biden administration to an Orwellian “Ministry of Truth.” In an accompanying injunction, Doughty ordered federal officials and agencies to cease all contact with social media firms that could potentially interfere with free speech.

The administration appealed and lost — at first.

In September 2023, the conservative U.S. Court of Appeals for the Fifth Circuit agreed with Doughty that officials with the FBI, CDC, the White House, and the COVID-19 Response Team likely violated the First Amendment by “coercing and significantly encouraging” social media platforms to “censor disfavored” speech.

Days later, the Department of Justice went to the nation’s high court.

In the application for a stay pending appeal, Solicitor General Elizabeth Prelogar rubbished Doughty’s original order as “an unprecedented injunction installing the United States District Court for the Western District of Louisiana as the superintendent of the Executive Branch’s communications with and about social-media platforms.”

More Law&Crime coverage: Justice Alito really wanted to hear what RFK Jr. had to say in social media censorship case to ‘prevent the irreparable loss of his First Amendment rights’

Originally stylized as Missouri v. Biden, the case was later refashioned into Murthy v. Missouri — and then remanded back down to the district court level, a victory for the government. The majority opinion by Justice Amy Coney Barrett did not get to the merits of the controversy, however, and instead dismissed the case using the conservative standing doctrine — a judicial theory created by judges in the 1920s who sought to dampen the use and limits of constitutional redress by making it difficult for individuals to sue the government over perceived violations of their rights.

“The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation,” Barrett wrote. “The District Court made none. Nor did the Fifth Circuit.”

The opinion goes on:

The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from “exercis[ing such] general legal oversight” of the other branches of Government. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.

Now, on remand, Doughty is sticking to his guns.

“This case stems from Defendants’ violation of Plaintiffs’ First Amendment speech rights,” the order begins. “We held previously that Plaintiffs’ claims were likely meritorious and issued a preliminary injunction in their favor. The Fifth Circuit mostly agreed. But the Supreme Court did not.”

The heart of the order directs the parties to move forward with suggestions on how to accommodate “jurisdictional discovery.”

This, the court points out, is not merits-based discovery, but a way to suss out whether the claims can still be brought by finding a way to prove they do have standing. Doughty sums up the question facing the court as: “[W]hat is a district court to do when jurisdiction is neither certainly existent nor certainly non-existent?”

In real terms, the plaintiffs were given 14 days to come up with another bite at the apple, in terms of a standing argument; the defendants will then have 14 days to reply to those arguments.

Of course, the issues at stake in the litigation, the judge somewhat veeringly opines, might be rendered something not entirely unlike moot — though he does not use this exact legal term — in the near future.

“We end with the unignorable reality that regime change is imminent,” the order goes on. “However, to take dispositive action in this case based on regime change alone would be quintessentially speculative . . . speculation which is trebly prohibited by our standing requirements, our injunction requirements, and our discovery requirements. So we will not.”

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Fifth Circuit removes judge from foster system abuse case

homesafetytechpros — Sat, 12 Oct 2024 21:18:13 +0000

Left: Texas Gov. Greg Abbott speaks in the Fiserv Forum on the third night of the Republican National Convention in Milwaukee, Wis., on Wednesday July 17, 2024 (Tom Williams/CQ Roll Call via AP Images). Right: Judge Janis Graham Jack (U.S. District Court for the Southern District of Texas).

A federal judge appointed by Bill Clinton was removed from a high-profile child abuse case this week by a panel of Republican-appointed judges on the Fifth Circuit Court of Appeals.

The removal of U.S. District Court Judge Janis Graham Jack came at the urging of Texas Gov. Greg Abbott (R) in a long-running case about inadequacies in the Lone Star State’s foster care system.

“Several facts compel bringing this case before a more disinterested tribunal,” the opinion and order authored by Judge Edith Jones reads.

The underlying case is a class action lawsuit against the Department of Family and Protective Services (DFPS). In 2015, Jack found state’s foster care system unconstitutional and imposed hefty fines along with mandating wide-ranging reforms. A team of monitors were also appointed to oversee compliance with the court’s orders. Texas, in turn, serially failed to comply or modernize.

At one point in 2019 Jack threatened to throw state officials in jail and fined the state $50,000 per day for failing to provide around-the-clock supervision to children in large group homes. Multiple foster care facilities were closed, according to the San Antonio Express-News, because even the DFPS commissioner admitted they had been “unsafe for decades.” Court monitors reported at least 23 children died while in the care of foster care shelters and facilities licensed by the Texas government during a period from the summer of 2019 to May 2021. Problems with the system are widely assumed to be ongoing.

Here’s how the appeals court framed the matter:

As this court originally found, the state of Texas had seriously neglected the management of its foster care system, resulting in constitutional violations against vulnerable children that this court affirmed. Nearly a decade has passed since the district court entered its first judgment ordering remedial relief. The state has been under constant, intrusive, and costly surveillance by a team of monitors and the district court ever since.

More Law&Crime coverage: Young sex trafficking victims were allegedly trafficked AGAIN by staff at government-contracted shelter in Texas

On April 15, Jack upped the ante: fining Texas $100,000 per day for certain violations in a contempt order. The district court, however, opened up the possibility of substantial compliance with earlier orders in order to cure the contempt – and avoid paying the fines.

In the appellate court order, the judges said the lower court’s contempt order was essentially nonsensical.

“[M]uch of the April 15 Order squarely focuses on whether the Defendants’ past conduct was in compliance with the Remedial Orders,” the Fifth Circuit says. “The April 15 Order requires the Defendants to pay $100,000 per day until they certify that certain investigations ‘closed from December 4, 2023 until the date of the State’s certification, are substantially compliant with the Remedial Order 3’ and that other ‘open’ investigations’ comply with Remedial Order 10. The Defendants can do nothing to render any already-untimely investigations timely.”

In other words, Texas complained that Jack’s contempt order required a truly impossible task: ensuring that already-shuttered investigations complied with obligations imposed by the district court in the future. The appeals court agreed with this understanding.

The appeals court also said the contempt order – and its associated fines – had become so burdensome that it effectively became transmogrified into criminal contempt – which requires a jury trial.

One particular point of contention, the Fifth Circuit said, was that Jack “urged and instigated” the plaintiffs to “seek contempt” for months before the order was issued in the first place.

In sum, the panel found that Jack had “become too personally involved in the proceedings” and that she expressed “a highly antagonistic demeanor toward” the State of Texas defendants.

Notably, the appellate court also opined that the state “intends to continue improving the foster care system in good faith” and took the judge to task for what they viewed as overreach.

“[A]s a general rule of law federal judges are not allowed to become permanent de facto superintendents of major state agencies,” the court observed. “Nor, under the federalist structure created by the Constitution, is it appropriate for federal court intervention to thwart the state’s self-management, where the state is taking strides to eliminate the abuses that led to the original decree.”

The critique continued at length:

Nor are federal judges even suited, by training or temperament, to manage institutions, personnel, or the provision of vital state services, even if counselled by monitors. In this case particularly, the integrity of oversight may have been further put at risk by the trial court’s creation of a “fund,” based on plaintiffs’ attorneys’ foregoing their court-approved fees, that the court may evidently disburse at its discretion. Federal judges should not be personally allocating resources from the state’s taxpayers for purposes not directly tied to and controlled by the state itself in order to abide by a court decree.

Additionally, the Fifth Circuit chided Jack for her “intemperate conduct on the bench,” including a finding that her “mode of questioning” the state’s objections during hearings was “inappropriate.”

“We have carefully considered the record and the applicable law before concluding that this case must be reassigned to another judge,” the court ruled. “The district judge must be removed.”

Sarah Rumpf contributed to this report.

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Appeals court slams DOE Repeal Rule on appliance efficiency

homesafetytechpros — Wed, 10 Jan 2024 17:21:46 +0000

Main: President Joe Biden. (AP Photo/Stephanie Scarbrough) Inset: A General Electric washing machine is shown. (AP Photo/Mike Stewart).

A conservative appeals court dealt a blow to President Joe Biden’s energy agenda Monday when it ruled that rolling back Trump-era loopholes for efficiency rules on dishwashers and washing machines had been done without enough consideration.

The 5th U.S. Circuit Court of Appeals ruled Monday that the Department of Energy (DOE) under Biden didn’t sufficiently consider the ramifications of its change to the former administration’s standards for energy efficiency.

In January 2022, the DOE reversed two rules passed under former President Donald Trump that exempted “quick” dishwashers, clothes washers and clothes dryers from efficiency regulations. Under the Trump-era rules, dishwashers that took less than 60 minutes and clothes washers and dryers that took less than 30 minutes were classified as separate “shortcycle” appliances and were exempted from efficiency regulations.

Efficiency regulations for lightbulbs and showerheads were also rolled back after Trump lamented, “You go into a new home, you turn on the faucet; no water comes out.”

“You turn on the shower — if you’re like me, you can’t wash your beautiful hair properly,” Trump commiserated, then bragged that he “got rid of” such inconvenient restrictions out of “common sense.”

When, under Biden, the DOE changed the previous rules, energy industry insiders described the move as a “Trump gimmick” that needed to be “undone.”

In response to the new rule, Louisiana led a group of states which included Alabama, Arkansas, Kentucky, Missouri, Montana, Oklahoma, South Carolina, Tennessee, Texas and Utah, to sue the DOE and argue that the standards were overly burdensome for home appliances.

A trio of Republican-appointed judges ruled for the 5th Circuit that the DOE must reconsider its “Repeal Rule.” The judges — Edith Brown Clement, Andrew Oldham and Cory Wilson — also took issue with the DOE’s attempt to use its authority to regulate water consumption. Writing for the panel, Oldham said Congress only authorized the DOE to regulate water consumption in showerheads, faucets, water closets, and urinals — and not in dishwashers or laundry machines.

Oldham noted in his 25-page ruling that adjusting energy rules was a priority of Biden’s from the start, but said the DOE ignored any negative consequences of repealing the prior rule — which included frustrating consumers with “high-efficiency,” but pragmatically inconvenient appliances.

Oldham said that in 2020, the DOE “appeared to agree” that modern dishwashers were so slow that consumers began simply hand-washing their dishes.

“And nothing wastes water and energy like handwashing,” Oldham remarked, noting that DOE estimates from 2011 said that washing dishes by hand uses 350% more water and 140% more energy than using a washing machine.

“Energy efficient” washers and dryers posed a similar problem, said the panel. Oldham said that the DOE was aware that consumers complained that they were forced to run multiple cycles to clean clothes in appliances that met stringent efficiency standards.

Oldham chastised the DOE for what he described as a lack of response to those concerns.

“What did DOE say in response?” Oldham asked, then answered, “Basically nothing: It acknowledged the concern and moved on. But bare acknowledgment is no substitute for reasoned consideration.”

The panel remanded the case to the DOE for further proceedings on the rule.

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