Fifth Circuit halts "religious-liberty training" order the day before it was to take place

The appeals court also allowed Texas's book-ban law to go into effect Monday with no explanation — and issued an odd order in the Biden administration social-media influence case.

The U.S. Court of Appeals for the Fifth Circuit was in rare form on Monday, even for the most conservative appeals court in the nation.

We’ll take things in reverse order, starting with this evening’s news that the “religious-liberty training“ that Southwest Airlines was ordered to take as part of a sanctions order in a long-running religious discrimination case is on hold for now.

Earlier this summer, U.S. District Judge Brantley Starr ordered three in-house lawyers at Southwest to attend eight hours of “religious-liberty training” conducted by Alliance Defending Freedom — the far-right, Christian legal advocacy organization that opposes abortion, is anti-LGBTQ, and brings cases to advance those and other causes — as part of a contempt order against the airline. Law Dork has been extensively covering the sanctions order.

Southwest is appealing the contempt order, arguing that the sanctions exceeded the judge’s civil-contempt powers and are unconstitutional. Southwest has asked for a stay of the sanctions pending that appeal. If the court wasn’t ready to rule on that request in time, Southwest asked for an administrative stay until the court could rule on the larger request. Notably, the the plaintiff in the underlying religious discrimination case, Charlene Carter, did not oppose the administrative stay request.

The court knew all of that when Southwest filed its stay requests on Sept. 6. It also knew since then that the training was set for Sept. 26.

Despite that, the court did not rule before Starr’s own administrative stay of the sanctions order expired, meaning that — although the training itself did not take place — the larger sanctions order did go into effect on Sept. 17 because of the inaction by the Fifth Circuit.

Instead, the court did not rule at all until Monday, Sept. 25. The day before the training, a three-judge panel of the appeals court issued a “temporary administrative stay” of the sanctions order — which it noted was unopposed.

The move — from Judges Edith Jones (Reagan), Stephen Higginson (Obama), and Cory Wilson (Trump) — means that the lawyers do not need to attend the training on Tuesday.

[Update, 3:50 p.m.: The motions panel considering the stay requests by Southwest issued an order Tuesday that the stay pending appeal request is “carried with the cases,“ meaning the merits panel hearing the appeal by Southwest Airlines of the contempt order has been left to act on the request.

In the meantime, however, the administrative stay issued on Monday will remain in place. So, no “religious-liberty training” for now.]

However, there is no real explanation for why the court waited 19 days — until the day before the training was scheduled — to issue the temporary order. Particularly when there was no opposition from the opposing party. Certainly the plans for the training had been made, and it’s possible if not likely that people — the ADF “trainers” and/or the Southwest “trainees” — had already traveled to the training location in case no order came.

The slow pace the Fifth Circuit took with Southwest’s request is all the more notable in light of the rapid pace with which it responded to two other requests on Monday, one relating to the new Texas book-ban law (five days) and the other relating to the Biden administration social-media influence case (three days).

Book-ban order

A three-judge panel of the Fifth Circuit quickly acted Monday to issue another administrative stay, allowing the state of Texas to enforce its new law establishing a book-ban regime in the state’s schools.

The law, passed earlier this year, had not been allowed to go into effect due to significant constitutional concerns from the lower court, meaning that Monday’s stay — though presented as “administrative” — altered the status of state law in Texas, putting a new law in effect for the first time with no reasoning and in a one-sentence order.

The extraordinary move — from Judges Jennifer Elrod (George W. Bush), Catharina Haynes (George W. Bush), and Dana Douglas (Biden) — came after U.S. District Judge Alan Albright, a Trump appointee, had temporarily prevented enforcement of the law just before its effective date of Sept. 1 and then, just one week ago, issued a preliminary injunction against enforcement, finding the law likely unconstitutional on several grounds.

Texas is appealing the Sept. 18 order from Albright. The state also, on Sept. 20, asked the appeals court for a stay pending appeal or, in the alternative, an administrative stay. The court granted an administrative stay on Monday, five days later (including a weekend).

Among other requirements, the Restricting Explicit and Adult-Designated Educational Resources (READER) Act, H.B. 900, requires private companies to create and produce lists of every book they wish to sell to public schools, determining which books are to be banned as “sexually explicit” and restricted as “sexually relevant.” The law then allows a state board to change those lists, with no appeal apparently available to the booksellers. The timeline for when the lists need to be submitted goes into next year, but, as the plaintiffs and district court explained, harms will accrue immediately. First, it’s not clear what school districts are supposed to do between the law going into effect and the lists being posted. And companies are certainly going to have difficulty selling books that could even possibly be covered by the new law to those schools in the meantime — particularly given that the law also requires booksellers to “recall” books previously sold that are later deemed to be banned.

Additionally, and as Albright explained in his decision last week, the state lacked answers to many basic questions about the law and its enforcement.

Nonetheless, on Monday, the appeals court said the state could go ahead and begin implementing the new law for now. Again, with no reasoning, and posed as an “administrative” action.

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Social-media case

Finally, in a move that is more confusing procedurally than perhaps any other appellate action I’ve seen, a third panel of the Fifth Circuit granted Missouri, Louisiana, and the private plaintiffs’ request to rehear arguments in their lawsuit against the Biden administration based on its engagement with social-media companies.

The three-judge panel of Judges Edith Clement (George W. Bush), Jennifer Elrod (George W. Bush), and Don Willett (Trump) ruled on Sept. 8 that a district court’s multi-part injunction against a broad array of Biden administration officials, limiting their communications with social-media companies, needed to be narrowed. The appeals court dropped some of the agencies and people covered and narrowed the injunction to one provision, which it revised. On the primary claim, however, the court agreed that the Biden administration “likely coerced or significantly encouraged social-media platforms to moderate content,” making the moderation state action and likely unconstitutional under the First Amendment.

The Fifth Circuit denied the Biden administration’s request for a partial stay of the injunction during their planned continued appeal, but the appeals court did grant its alternative request, issuing the mandate in the case on Sept. 11 to the district court (effectively limiting the injunction as required by the appeals court ruling by sending the case back to the district court to implement its ruling). As expected, the Biden administration then went to the Supreme Court on Sept. 14, seeking a stay of the injunction as altered by the Fifth Circuit’s decision.

As the circuit justice who receives applications out of the Fifth Circuit, Justice Sam Alito issued his own administrative stay in this case the same day the request came in. He since extended the administrative stay once, and it currently is in place until 11:59 p.m. ET Wednesday, Sept. 27.

Nonetheless, on Sept. 22, the plaintiffs asked the Fifth Circuit panel to rehear the case, primarily because, they argued, some of the agencies the Fifth Circuit dropped from the inunction should have been included and one of the injunction provisions removed should be put back.

And, on Monday — the next business day — the appeals panel granted the request, before the Biden administration even weighed in on it.

Hours later, the lawyers for Missouri, Louisiana, and the private plaintiffs sent a letter to the Supreme Court, informing them of the Fifth Circuit’s action. Although they called it a “significant procedural development,” they notably did not say what that means for the request before the court.

Because the appeals court already issued the mandate — two weeks earlier — it’s not clear what happens now. The narrowed injunction is properly before the Supreme Court on the stay request, and the court has taken action on the request by issuing the administrative stay. The appeals court did nothing on Monday to recall the mandate, so it did nothing to re-take jurisdiction of the case. As such, I’m honestly at a loss and look forward to seeing how the Justice Department — and the Supreme Court — responds to all of this over the next day or two.

[Update, 11:30 a.m.: The Justice Department on Tuesday morning filed a supplemental memorandum, explaining, well, much of what is detailed here at Law Dork. “[A]lthough the Fifth Circuit had already issued its mandate -- thereby divesting itself of authority over the case -- the court also did not purport to recall the mandate or explain why that step would be justified,” Solicitor General Elizabeth Prelogar noted. “Respondents’ September 25 letter notifying this Court of the Fifth Circuit’s order describes it as a ‘significant procedural development,’ but likewise says nothing about what respondents believe the order actually does.“

Shortly thereafter, and perhaps after similarly reviewing their own rules, the Fifth Circuit issued a new order withdrawing Monday’s order, recalling the mandate (so bringing jurisdiction back to the appeals court), asking DOJ to respond by Sept. 28 to the plaintiffs’ request for rehearing, and issuing a stay of the district court’s injunction while the appeals court considers the rehearing request.

Bottom line: There are now two stays against the injunction — one administrative stay from Alito and another stay from the Fifth Circuit panel — and we should expect another set of letters at the Supreme Court about the fact of Tuesday’s order and its effect on the still-pending stay request at the Supreme Court.]

[Update, 3:15 p.m.: The plaintiffs again informed the court of “a significant procedural development” below, detailing the order but again not explaining the plaintiffs’ view of its effects.]

[Update, 5:45 p.m. Sept. 27: The Justice Department filed a second supplemental memorandum on Tuesday, responding to the Fifth Circuit’s Tuesday actions. In short, Solicitor General Elizabeth Prelogar asked the court to grant the stay pending the resolution of any petition for certiorari, regardless of the Fifth Circuit’s stay, because the Fifth Circuit’s stay was limited to the consideration of the rehearing request and because the Fifth Circuit’s orders “have injected uncertainty into the proceedings during this Court’s active consideration of the case.”]