Fifth Circuit Publicly Reveals Holds in Cases It May Rehear

The US Court of Appeals for the Fifth Circuit said its judges are publicly preventing over 20 of their recent rulings from going into effect, after the court said it will now make those holds visible to the public.

Holds have been issued in at least 22 cases, Fifth Circuit clerk Lyle Cayce said in an email Tuesday. The change to the Fifth Circuit’s internal procedures says that any judge, without disclosing their identity, can pause the mandate in a case from issuing as they “resolve differences” with the panel which ruled in the case, or request that the court be polled on whether the case should be reheard by all the active judges.

Cayce said the court previously didn’t publicly docket holds, even if one was issued on the internal docket. “Thus, in the past, when we did not issue the mandate on the expected date, parties assumed the reason was a hold,” he said. “The new procedure will clarify the reason for the delay.”

A mandate is issued when an appeals court’s ruling goes into effect. Those courts will often put a pause between their opinions being made and the mandate going into effect to allow parties to appeal the decision, or for the court to decide on its own that it should rehear the case.

The Fifth Circuit in recent years has seen more cases with national significance, as conservatives challenge Biden administration policies in the Texas, Mississippi, and Louisiana federal trial courts that fall within its jurisdiction. The Supreme Court has taken up more of the court’s decisions in recent years, including a case later this term on the federal authorization for the abortion medication mifepristone.

Among the cases in which a Fifth Circuit judge has issued a hold is an October panel decision that said the SEC could approve Nasdaq rules meant to expand representation of women and minorities on the boards of its listed companies. Judges Carl Stewart, James Dennis and Stephen Higginson — all Democratic appointees to the conservative-held court — issued the ruling.

There’s also a hold on a panel decision last month against a Texas law that would require booksellers to assign sex-content ratings for titles they sell to public schools. Donald Trump-appointed Judge Don Willett wrote that opinion, which was joined by Joe Biden appointee Judge Dana Douglas and Senior Judge Jacques Wiener, nominated by George H. W. Bush.