Case: 21-60312 Document: 00516745356 Page: 1 Date Filed: 05/10/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
May 10, 2023
No. 21-60312 Lyle W. Cayce
Clerk
Jackson Municipal Airport Authority; Board of
Commissioners of the Jackson Municipal Airport
Authority, each in his or her official capacity as a Commissioner on the
Board of Commissioners of the Jackson Municipal Airport Authority; Doctor
Rosie L. T. Pridgen, in her official capacity as a Commissioner on the
Board of Commissioners of the Jackson Municipal Airport Authority;
Reverend James L. Henley, Jr., in his official capacity as a
Commissioner on the Board of Commissioners of the Jackson Municipal Airport
Authority; LaWanda D. Harris, in her official capacity as a
Commissioner on the Board of Commissioners of the Jackson Municipal Airport
Authority; Vernon W. Hartley, Sr., in his official capacity as a
Commissioner on the Board of Commissioners of the Jackson Municipal Airport
Authority; Evelyn O. Reed, in her official capacity as a Commissioner on
the Board of Commissioners of the Jackson Municipal Airport Authority;
Doctor Rosie L. T. Pridgen, individually as citizens of the City of
Jackson, Mississippi, on behalf of themselves and all others similarly situated;
LaWanda D. Harris, individually as citizens of the City of Jackson,
Mississippi, on behalf of themselves and all others similarly situated; Vernon
W. Hartley, Sr., individually as citizens of the City of Jackson,
Mississippi, on behalf of themselves and all others similarly situated; Evelyn
O. Reed, individually as citizens of the City of Jackson, Mississippi, on behalf
of themselves and all others similarly situated; James L. Henley, Jr.,
individually as citizens of the City of Jackson, Mississippi, on behalf of
themselves and all others similarly situated,
Intervenors—Appellees,
versus
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Josh Harkins; Dean Kirby; Phillip Moran; Chris
Caughman; Nickey Browning; John A. Polk; Mark Baker;
Alex Monsour,
Respondents—Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-246
Before Dennis, Elrod, and Duncan, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge: *
A group of Mississippi legislators appeals a district court order
instructing them to produce: (1) a privilege log; and (2) communications and
documents that have been shared with third parties. We hold that the district
court did not abuse its discretion in ordering the Legislators to produce a
privilege log. But the district court erred in broadly holding that legislative
privilege was automatically waived for any documents that have been shared
with third parties. Accordingly, we AFFIRM in part, REVERSE in part,
and REMAND for further proceedings.
I
The Jackson-Medgar Wiley Evers International Airport is a major
airport located in Jackson, Mississippi. Since 1960, the airport has been
operated by the Jackson Municipal Airport Authority, whose five
commissioners are selected by the city government. But in 2016, the
Mississippi legislature passed, and the governor signed into law, SB 2162. Id.
§ 61-3-6. SB 2162 abolishes the Jackson Municipal Airport Authority and
*
Judge Dennis joins Part IV and Section V.A of this opinion. Judge Duncan joins
Part III and Section V.B of this opinion.
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replaces it with a regional authority composed of nine commissioners, only
two of whom are selected by Jackson city government. Id.
Shortly before the Governor signed SB 2162 into law, a Jackson citizen
filed a suit seeking to enjoin the law. The mayor, the city council, the Jackson
Municipal Airport Authority, its board of commissioners, and the
commissioners in their individual capacities intervened in that lawsuit. The
intervenors contend that SB 2162 violates the Equal Protection rights of the
citizens of Jackson by eliminating the locally controlled Jackson Municipal
Airport Authority for racially discriminatory reasons.
During discovery, the intervenors served subpoenas on eight non-
party state legislators who participated in SB 2162’s drafting and passage.
The Legislators refused to comply with Request #3 in the subpoena, which
sought documents and communications related to SB 2162, asserting that any
responsive discovery would either be irrelevant or protected by legislative
privilege. The magistrate judge, and later the district court, rejected this
position. The order noted that because legislative privilege is qualified, the
Legislators must produce a privilege log before any assertions can be
assessed. It also held that the “privilege has been waived for documents that
have been shared with third parties,” and that “the Legislators must produce
the nonprivileged documents responsive to Request #3.” The Legislators
appealed and a panel of this court vacated the district court’s order.
Stallworth v. Bryant, 936 F.3d 224 (5th Cir. 2019). But the panel did not reach
the merits because it held that the Commissioners lacked standing. Id. at
229–32.
On remand, the district court allowed the plaintiffs to amend their
complaint to cure the standing defect and add two newly appointed
commissioners as plaintiffs. The Commissioners again served subpoenas on
the Legislators seeking the exact same information as the prior subpoenas.
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The Legislators again objected on the basis of legislative privilege; the district
court again ordered the Legislators to comply with the subpoena; and the
Legislators again declined and appealed.
This appeal raises four issues: (1) whether this court has appellate
jurisdiction; (2) whether the Commissioners have standing; (3) whether
legislative privilege relieves the Legislators from having to submit a privilege
log; and (4) whether the district court erred in holding that legislative
privilege was waived for any documents that have been shared with third
parties.
II
We review questions of subject-matter jurisdiction de novo. Houston
Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 400
(5th Cir. 2014). A subpoena enforcement order is generally reviewed for
abuse of discretion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016).
But we review a district court’s determination of controlling law de novo. In
re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003).
III
Generally, appellate jurisdiction is statutorily confined to review of
“final decisions.” 28 U.S.C. § 1291. But “the Supreme Court ‘has long
given’ § 1291a ‘practical rather than a technical construction.’” Leonard v.
Martin, 38 F.4th 481, 486 (5th Cir. 2022) (quoting Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949)). Accordingly, section 1291
encompasses not only the final decisions that terminate an action, “but also
a small class of collateral rulings that, although they do not end the litigation,
are appropriately deemed final.” Id. (quoting Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106 (2009)) (internal quotation marks omitted).
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Under this court’s precedent, the Legislators have the right to
immediately appeal the district court’s order. Our decisions in Cates and
Branch are instructive. Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th
Cir. 1973); Branch v. Phillips Petroleum Co., 638 F.2d 873, 879 (5th Cir. 1981).
In Cates, we considered whether a subpoena upon a government
representative can be used to obtain documents that are not in the custody of
that representative. Before addressing the merits, we first considered
whether appellate jurisdiction existed. We held that it did because
“discovery orders may be appealable” when governmental privilege is
involved and the government “is not a party to the lawsuit.” Cates, 480 F.2d
at 622.
While our decision in Cates only considered an instance where the
subpoenaed entity was not in custody of the relevant documents, our
subsequent opinion in Branch observed that “Cates clearly extends the right
of immediate appeal to the government even when it is itself in custody of the
subpoenaed material.” 638 F.2d at 879. Likewise, relying on this court’s
holding in Cates and Branch, the Eleventh Circuit has held that “one who
unsuccessfully asserts a governmental privilege may immediately appeal a
discovery order where he is not a party to the lawsuit.” In re Hubbard, 803
F.3d 1298, 1305 (11th Cir. 2015). Thus, in accordance with our precedent
and the Eleventh Circuit’s decision in Hubbard, we hold that appellate
jurisdiction exists in this case. Id.; Cates, 480 F.2d at 622; Branch, 638 F.2d
at 879; see also Leonard, 38 F.4th at 487 (observing that the Fifth Circuit
“allows immediate appeal of orders” that “implicate[] ‘some particular
value of a high order’ or ‘substantial public interest’ that would be imperiled
or destroyed if review were delayed until after entry of an archetypal final
judgment.” (quoting Mohawk, 558 U.S. at 107)).
The Commissioners argue that we lack appellate jurisdiction here
because “[n]othing about the district court’s order forces ‘disclosure’ of any
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documents.” The Commissioners assert that the order “merely requires the
Legislators to provide a privilege log.” Citing our decision in Banca Pueyo,
the Commissioners argue that we lack appellate jurisdiction here because the
order is merely a preliminary step in the resolution of this discovery dispute.
Banca Pueyo SA v. Lone Star Fund IX (US), L.P., 978 F.3d 968 (5th Cir.
2020).
But the order here is not merely a preliminary step because it
specifically ordered the Legislators to produce any documents that had been
shared with third parties. Contrary to Judge Dennis’s partial dissent, the
magistrate judge’s finding is not just a “summary of the state of the law
regarding legislative privilege.” Post, at 15. The order stated:
The Court finds that to the extent documents or information
otherwise protected by the legislative privilege have been
shared with third parties, the privilege has been waived.
Accordingly, the Legislators must produce those documents.
Order Granting in Part and Denying in Part Motion to Enforce Subpoenas at
13, Jackson Mun. Airport Auth. v. Reeves, No. 16-CV-246 (S.D. Miss. Dec. 19,
2017) (emphasis added).
The magistrate judge held that documents or information that “have
been shared with third parties” are non-privileged and that “the Legislators
must produce the nonprivileged documents.” Because the Legislators were
ordered to produce all non-privileged documents, it necessarily follows that
the Legislators were ordered to produce documents that had been shared
with third parties. That is unquestionably a final discovery order because the
Legislators could no longer assert any privilege as to those documents.
And so, Banca Pueyo is distinguishable. In Banca Pueyo, we held that
there was no appellate jurisdiction because the appealed order did "not
conclusively determine whether, and to what extent, discovery might be
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required.” 978 F.3d at 973. Here, the order did so. Accordingly, unlike the
order in Banca Pueyo, the order here constitutes a final discovery order that
is appealable under our precedent. See Branch, 638 F.2d at 879; Cates, 480
F.2d at 622.
IV
Next, we consider standing. The Commissioners have standing in this
case based on the amended complaint that was filed after remand. To have
standing, the plaintiffs must have suffered an invasion of a legally protected
interest that is: (1) “concrete, particularized, and actual or imminent”; (2)
“fairly traceable to the challenged action”; and (3) “redressable by a
favorable ruling.” Stallworth, 936 F.3d at 229–30 (citation omitted). The
Commissioners fulfill these conditions.
A
1
The alleged injury is concrete because the Commissioners will be
deprived of their benefits if they lose their position. As Commissioners, they
are entitled to receive a per diem for their service and a travel reimbursement
that allows them to obtain specialized training in airport administration. In
addition to these tangible benefits, their positions also confer substantial
status and authority because as commissioners, they exercise considerable
power over the airport by overseeing finances and operations and defining
the airport’s strategic goals. We hold that the potential loss of benefits that
comes with the Commissioners’ position is sufficiently concrete to support
the Commissioners’ standing. See Spokeo, Inc. v. Robins, 578 U.S. 330, 340
(2016) (“Concrete is not, however, necessarily synonymous with tangible.”
(quotation marks omitted)); see also Stallworth, 936 F.3d at 232
(Higginbotham, J., concurring) (noting that the Commissioner’s “position
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of status and authority may be a sufficient injury for their standing”). 1 The
Legislators did not meaningfully challenge the concreteness of the alleged
injury.
2
The alleged injury is also sufficiently particularized because the
Commissioners would suffer a personal injury from losing their seats. They
are the only people who would lose the position as commissioners and the
benefits that come with the position if SB 2162 is allowed to become effective.
Cf. Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 388 (5th Cir. 2017) (holding
that an injury was not particularized where plaintiffs’ harm was same as harm
to “millions of people”).
The Legislators argue that because SB 2162 abolishes the entirety of
Jackson Municipal Airport Authority (not just the Commissioners’ seats),
the harm is not particularized to the Commissioners. Citing Raines v. Byrd,
521 U.S. 811 (1997), the Legislators contend that the alleged injury is “the
sort of institutional injury which the Supreme Court has held insufficient to
establish standing for Members of Congress.” But Raines hardly supports
the Legislators’ position here.
In Raines, the Supreme Court considered whether Members of
Congress have standing to seek a declaration of the unconstitutionality of an
act passed over their negative votes. The Court held that the Congressmen
1
A panel of this court in Stallworth held that the plaintiffs had no standing because
“The complaint never suggests—as counsel did during oral argument—that the individual
commissioners are volunteers reimbursed for some expenses, that Mississippi law
recognizes volunteers as public employees in some contexts, and that the combination
might give them standing to challenge SB 2162.” Stallworth v. Bryant, 936 F.3d 224, 232
(5th Cir. 2019). The plaintiffs have since amended their complaint and cured that defect
on remand.
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did not have standing because their claim was “based on a loss of political
power, not loss of something to which they are personally entitled.” Id. at
821. The Court observed that the alleged harm there was not sufficiently
particularized because “appellees do not claim that they have been deprived
of something to which they personally are entitled—such as their seats as
Members of Congress after their constituents had elected them.” Raines, 521
U.S. at 821. Unlike the plaintiffs in Raines, the Commissioners are alleging
deprivation of something to which they are personally entitled: their seats as
Commissioners and the benefits that come with the position. Accordingly,
we hold that the alleged injury is sufficiently particularized to support the
Commissioners’ standing.
3
Further, the alleged injury is imminent because SB 2162 abolishes the
Jackson Municipal Airport Authority and thus the Commissioners’
positions. On this issue, the Legislators argue that the injury is not imminent
because SB 2162 will not immediately abolish the Jackson Municipal Airport
Authority. They note that the Authority will continue to exist until the
Federal Aviation Administration approves the new Jackson Metropolitan
Area Airport Authority.
In response, the Commissioners argue that “the time delay that [the
Legislators] claim is fatal to the Commissioners’ standing is almost entirely
caused by the fact that this lawsuit is pending: the only reason the FAA has
not considered the transfer yet is because FAA declines to do so while there
is active litigation concerning a contested transfer of airport control.” See
FAA’s “Notice of Policy on Evaluating Disputed Changes of Sponsorship at
Federally Obligated Airports,” 81 Fed. Reg. 36144, 36145 (Jun. 6, 2016). The
Legislators never denied that assertion. Nor did they provide any reason to
suggest that the FAA may decide not to approve the new authority. Rather,
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the Legislators merely assert that “[e]ven if the dismissal of the complaint
will ultimately lead to approval by the FAA of the new Authority, the process
may take a very long time.”
But the fact that the approval process might take a very long time is
insufficient to defeat the Commissioners’ standing because the alleged injury
here is still likely to occur and is “certainly impending.” Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 170 (2000); see Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Thus, we hold that the
Commissioners satisfy the imminence requirement.
B
Finally, we address traceability and redressability. The alleged injury
is traceable to SB 2162 because the law, by its very own terms, eliminates the
Commissioners’ positions. As to redressability, the Commissioners here are
seeking an injunction against SB 2162 and a declaration that SB 2162 is
unconstitutional. The Legislators argue this will not redress any harm
because the Commissioners could lose their positions for some other reason.
But the redressability prong does not require a remedy that covers every
conceivable injury, just one that redresses the harm caused by SB 2162.
Enjoining the enforcement of SB 2162 would prevent the law from abolishing
the Jackson Municipal Airport Authority, and thus the Commissioners’
positions. Consequently, the alleged injury is redressable by the relief sought.
Accordingly, based on the operative complaint, the Commissioners
have standing in this case.
V
Having considered jurisdiction and standing, we now proceed to the
merits. The district court ordered the Legislators to produce: (1) a privilege
log; and (2) communications and documents that have been shared with third
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parties. On appeal, the Legislators argue that this court should reverse both
aspects of the order. We address each aspect in turn.
A
First, the Legislators contend that no privilege log should be required
because the Commissioners seek only evidence of motive, and any evidence
of motive is privileged. And because the Equal Protection claim is based
entirely on motive, the Legislators assert that any non-motive evidence
would be irrelevant. Put simply, the Legislators argue that all the requested
communications would either be privileged or irrelevant. Thus, they
conclude that they need not produce a privilege log.
But a privilege log would not be useless because evidence of legislative
motive is not necessarily privileged. As the Legislators themselves
recognized, legislative privilege can be waived when certain conditions apply.
For example, legislative privilege as to certain documents is waived when the
Legislator publicly reveal those documents. Favors v. Cuomo, 285 F.R.D. 187
(E.D.N.Y. 2012) (“[A] legislator waives his or her legislative privilege when
the legislator publicly reveals documents related to internal deliberations.”).
Likewise, statements that have no connection whatsoever with “legitimate
legislative activity” are not protected by legislative privilege. Hubbard, 803
F.3d at 1308 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)); see
Tenney, 341 U.S. at 377 (“Legislators are immune from deterrents to the
uninhibited discharge of their legislative duty, not for their private indulgence
but for the public good.”). Accordingly, we agree with the district court that
a privilege log is necessary to determine which of the requested documents
and communications are protected by legislative privilege.
B
Although the district court did not abuse its discretion in ordering the
Legislators to produce a privilege log, the district court’s determination that
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legislative privilege had been waived for any “documents or information
[that] have been shared with third parties” is overbroad. Legislative privilege
applies to communications where the legislator or his agent was acting within
“the sphere of legislative activity.” Id. And the privilege is “not limited to
the casting of a vote on a resolution or bill; it covers all aspects of the
legislative process.” Almonte v. City of Long Beach, 478 F.3d 100, 107 (2d Cir.
2007).
As relevant here, communications with third parties outside the
legislature might still be within the sphere of “legitimate legislative activity”
if the communication bears on potential legislation. Hubbard, 803 F.3d at
1308. Consequently, some communications with third parties, such as
private communications with advocacy groups, are protected by legislative
privilege when they are “a part and parcel of the modern legislative
procedures through which legislators receive information possibly bearing on
the legislation they are to consider.” Almonte, 478 F.3d at 107 (quoting Bruce
v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980)). Thus, we disagree with the
district court’s broad pronouncement that the Legislators waived their
legislative privilege for any documents or information that had been shared
with third parties. 2
* * *
Accordingly, we AFFIRM in part, REVERSE in part, and
REMAND for further proceedings.
2
Finally, contrary to Judge Dennis’s partial dissent, our holding on this issue is not
an “advisory opinion.” Post, at 14. The appellant squarely presented the issue before this
court. And as explained in Part III, the magistrate judge made a final determination as to
this issue, so we have appellate jurisdiction to consider it.
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James L. Dennis, Circuit Judge, concurring in part and dissenting in part:
I respectfully disagree with my colleagues that the district court
ordered anything more than the production of a privilege log in this
interlocutory appeal. Neither party has ever argued that the district court
ordered the Legislators to produce any withheld discovery, and the order
itself—contrary to the majority’s selective quotation—is clear: if the
Legislators choose to withhold any responsive discovery on the basis of
legislative privilege, they must sustain their assertion of privilege with a
privilege log which the Commissioners may then challenge. The court will
resolve any dispute, only then ordering production if appropriate. This, of
course, is how assertions of privilege work in discovery practice. See Fed.
R. Civ. P. 45(e)(2). 1 The Legislators’ challenge to the first step of this
process, before any assertion of privilege over specific discovery has been
sustained, disputed, or adjudicated, is a challenge to an undetermined and
inconclusive discovery dispute. It is unripe for appellate review.
Because the district court only ordered the Legislators to produce
“the customary privilege log”—nothing more—I disagree that there is
appellate jurisdiction for their interlocutory appeal. However, as a majority
of the court finds we have the power to entertain this appeal, I agree with
Judge Elrod that the Commissioners have standing to assert their Equal
Protection claim. Losing a job, and its social and material benefits, is not an
1
The district court ordered the Legislators to submit a privilege log pursuant to
Federal Rule of Civil Procedure 26(b)(5)(A). Rule 45(e)(2), formerly Rule 45(d), governs
assertions of privilege over subpoenaed information, but the text of the two rules, as well
as their obligations, are identical. See Fed. R. Civ. P. 45 advisory committee’s notes to
1991 amendment subsection d and notes to 2007 amendment; Mosely v. City of Chicago, 252
F.R.D. 421, 426 (N.D. Ill. 2008) (“Just as Rule 26(b)(5) requires parties lodging a claim of
privilege against a discovery request to compile a privilege log, Rule 45(d)(2)(A)(ii)
imposes the same obligation on nonparties responding to subpoenas.”).
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“institutional injury” simply because one happens to work for a public
institution. I also agree that the Legislators’ argument that legislative
privilege is so absolute as to exempt them from all discovery process, even
the basic responsibility of sustaining their assertion of privilege as the Federal
Rules require, fails. 2 However, because I do not understand the district court
to have ordered the production of any discovery, I view the majority’s
attempt to reverse the magistrate judge’s statements of law as an advisory
opinion which I cannot join.
In sum, I respectfully dissent from Section III of Judge Elrod’s
opinion above, concur with Section IV and Section V.A, and dissent from the
advisory opinion of Section V.B.
* * *
As my disagreement with the majority turns entirely on the nature of
the order appealed, a detailed recounting of both the magistrate judge’s order
and the district court order overruling the Legislators’ objections to the
magistrate judge’s order is necessary.
According to the majority, the magistrate judge’s order held that
legislative privilege had been waived for documents that “have been shared
with third parties,” and that “the Legislators must produce the
nonprivileged documents.” Maj. Op. at 7. Read in the context of the entire
order, neither of these quotes means what the majority thinks they do.
2
The Legislators’ notion that they need merely invoke legislative privilege to be
entitled to it is unknown to federal discovery practice and obviously unworkable. “The
person claiming a privilege or protection cannot decide the limits of that party’s own
entitlement.” Fed. R. Civ. P. 45, advisory committee’s note to 1991 amendment
subsection d.
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Starting with the second one first, the magistrate judge’s directive to
produce nonprivileged documents is, by its very terms, not an order to
produce privileged documents for which the privilege has been waived.
Rather, it is an order to produce nonprivileged documents. 3 At the time the
Commissioners filed their motion to compel, the Legislators had not turned
over any discovery in response to Request #3, including discovery over which
they asserted no privilege. If the distinction between privileged and
nonprivileged documents were not obvious from the plain meaning of the
words, it is obvious from the remainder of the sentence in the order, which
the majority omits. The omitted portion of the order states that the
Legislators “must produce a privilege log identifying the responsive
documents withheld from production under a claim of privilege.” The
distinction is clear: Nonprivileged documents must be produced, and for
privileged documents, a privilege log must be produced. Nothing orders the
production of privileged documents for which privilege has been waived.
The other supposed holding of the magistrate judge’s that the
majority relies on for jurisdiction—that legislative privilege has been waived
for documents shared with third parties—is also a misreading of the
magistrate judge’s order. The complete sentence from which the majority
selects its quote reads: “The Court finds that to the extent otherwise-
privileged documents or information have been shared with third parties, the
privilege with regard to those specific documents or information has been
waived.” This “finding,” which the majority treats as a holding, is the
3
The majority tries to evade this distinction by mischaracterizing the record,
saying that “[t]he magistrate judge held that documents or information that ‘have been
shared with third parties’ are non-privileged,” Maj. Op. at 7, when in fact the order stated
“to the extent documents or information otherwise protected by the legislative privilege
have been shared with third parties, the privilege has been waived,” Maj. Op. at 6 (quoting
the magistrate judge’s order) (emphasis added).
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magistrate judge’s summary of the state of the law regarding legislative
privilege, not an application of that law to the specific discovery withheld.
Immediately prior to the sentence cited by the majority, the order states that
the Legislators “urge the Court to find” that, under the applicable caselaw,
legislative privilege applies broadly to all communications with third parties,
thus obviating the need to produce a privilege log. But after reviewing the
caselaw, the magistrate judge “found” the law to be different than the
Legislators’ account of it, notably that legislative privilege could be waived
with respect to documents shared with certain third parties. The language
the majority quotes is the magistrate judge’s summary of the applicable law,
not an application of that law to any specific discovery withheld. Read in
context, the language excerpted by the majority is simply the magistrate
judge’s response to the Legislators’ argument that all communications, even
those with third parties, are shielded by legislative privilege. This was the
basis upon which the magistrate judge rejected the Legislators’ position that
they need not provide a privilege log. That the magistrate judge qualified his
statement about the applicability of the law—noting that “to the extent
otherwise-privileged documents or information have been shared with third
parties,” privilege would be waived—only demonstrates further that he had
not, in fact, made any determination as to what specific discovery must be
produced.
Perhaps that is why nothing in the order’s decree actually directs the
Legislators to produce any documents they have withheld on the basis of
legislative privilege. The decretal portion of the order reads only: “By
February 28, 2018, the Legislators must produce the nonprivileged
documents responsive to Request #3 and must produce a privilege log
identifying the responsive documents withheld from production under a
claim of privilege.” Notably absent from this is the directive that the majority
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says is there: produce otherwise privileged documents that have been shared
with third parties.
If there were any ambiguity, the district court’s order overruling the
Legislators’ objections to the magistrate judge’s order makes clear that the
only thing the magistrate judge ordered the Legislators to produce was a
privilege log. As the district court stated:
The Magistrate Judge concluded that the state legislators subpoenaed
in this action must create the customary privilege log. Once the
privilege log is created and reviewed by all, the Magistrate Judge will
adjudicate whether the plaintiffs can overcome the traditional
privilege afforded to legislators’ communications with other
legislators and legislative staff. He then indicated that the legislators
will likely have to produce their communications with nonlegislative
third parties, where the privilege was waived.
I read the magistrate judge’s order as the district court did. It directs the
Legislators to produce a privilege log, and only after that will the application
of legislative privilege to any withheld discovery be adjudicated. 4 Implicit in
4
Indeed, the magistrate judge himself laid out these standard steps of asserting and
adjudicating claims of privilege in his order, stating further that the parties and the court
would follow them:
Considering the claims in this case, the specific request, and the privilege
at issue, the Court finds that Fed. R. Civ. P. 26 and L.U.Civ.R. 26 require
a privilege log. Accordingly, should the Legislators withhold any
documents responsive to Request #3, they must also produce a privilege
log identifying all such documents, in accordance with Fed R. Civ. P. 26
and L.U.Civ.R. 26. Should Plaintiffs wish to challenge a privilege claim as
to any documents on the Legislators’ privilege logs, Plaintiffs must file a
motion identifying the specific documents to which they contest the claim
of privilege and setting forth their arguments for production under the
Rodriguez factors and otherwise. After briefing on any such motion has
been completed, the Court will, if necessary, conduct an in camera review,
in whole or part, and rule on the motion.
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the statement that the magistrate judge “will adjudicate” any privilege
dispute is the proposition that the magistrate judge has not yet done so. Any
dispute over the application of legislative privilege to the withheld discovery
has, as of this appeal, not yet been decided by the district court.
Finally, it is worth noting that what the majority claims the magistrate
judge ordered is simply not possible under the Federal Rules. Rule 45(e)(2)
provides that any person withholding subpoenaed information under a claim
of privilege “must: (1) expressly make the claim; and (2) describe the nature
of the withheld documents . . . in a manner that . . . will enable the parties to
assess the claim.” That latter requirement of Rule 45(e)(2) is, of course, that
of a producing a privilege log. Without the information contained in a
privilege log, the Commissioners cannot “asses the claim” and the district
court cannot adjudicate any dispute they might have with the Legislators’
assertion. Simply put, there cannot be an order to produce withheld
discovery without a privilege log because the parties and the court lack the
information needed to determine whether the privilege applies to the
withheld discovery. See Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12
(1st Cir. 1991) (“[T]he assertion of privilege . . . must also be accompanied
by sufficient information to allow the court to rule intelligently on the
privilege claim.”); Peacock v. Merrill, No. 08-01-B-M2, 2008 WL 687195, at
*3 (M.D. La. Mar. 10, 2008) (“Without . . . the privilege log, it is not possible
for Peacock to legitimately contest the asserted privilege and for the Court to
rule intelligently upon whether the claim of privilege should be sustained.”).
That there can be no adjudication without a privilege log is why the failure to
submit a privilege log may result in waiver, rather than an adverse
determination on the merits that the privilege does not apply. See EEOC v.
It is nonsensical to read the magistrate judge’s order as both ordering the production of
discovery and also stating that it will do so only after a motion to compel and full briefing.
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BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017); Fed R. Civ. P. 26,
advisory committee’s note to 1993 amendment. In this particular case, no
one—not the Commissioners, not the district court, not the majority—know
whether the discovery the Legislators are withholding contains
communications shared with third parties outside the sphere of legislative
activity. Yet this is precisely the determination that the majority claims the
magistrate judge erroneously made. How the majority knows that the
withheld discovery was not shared with third parties for non-legislative
purposes when it too lacks this information is beyond comprehension.
Because it is both obvious from the face of the order itself and a
necessary conclusion from the procedural rules governing assertions of
privilege in discovery, it is clear that the order appealed only directs the
Legislators to produce a privilege log. I disagree with the majority’s
imagining that there is more. Accordingly, I view the majority’s opinion that
the magistrate judge’s statements regarding the scope of legislative privilege
were “overbroad” as an advisory opinion that Article III does not empower
us to render. Maj. Op. at 11.
I respectfully dissent from Section III of Judge Elrod’s opinion,
finding appellate jurisdiction, concur in Section IV finding the
Commissioners have standing, concur in Section IV.A finding that the
Legislators must submit a privilege log to sustain their assertions of legislative
privilege, and dissent from Section IV.B’s advisory opinion reversing the
district court’s “broad pronouncement” about the scope of that privilege.
Maj. Op. at 12.
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Stuart Kyle Duncan, Circuit Judge, concurring in part and dissenting
in part:
While I agree that we have appellate jurisdiction, see Elrod Op. at 4–6,
I respectfully disagree that the individual Commissioners have standing, see
id. at 6–10; see also Dennis Op. at 1–2. In the majority’s view, the
Commissioners are personally injured because eliminating the JMAA will cut
off their expense accounts. No precedent supports that theory of standing.
Per diems are perks tethered to public office, not private rights whose loss
personally injures the officeholder. So, instead of remanding for further
proceedings in this now-seven-year-old intrastate political squabble, I would
reverse and render judgment dismissing the Commissioners’ claims.
The Commissioners claim SB 2162 violates the Equal Protection
Clause by “abolish[ing] the JMAA and thereby terminat[ing] their
employment as Commissioners on the basis of race.” Am. Compl. ¶ 140. The
majority decides the Commissioners have standing to press these claims
based on allegations that they are “entitled to receive a per diem for their
service and a travel reimbursement that allows them to obtain specialized
training in airport administration.” Elrod Op. at 7; see Am. Compl. ¶ 142. It
also suggests the Commissioners are injured by the loss of “status and
authority” caused by the elimination of the JMAA and, along with it, their
positions. Elrod Op. at 7. The majority cites no precedent supporting its view
that these asserted harms qualify as personal injuries to the individual
Commissioners. 1
1
Judge Elrod’s opinion relies mostly on general standing precedents that do
not address legislators’ standing. See Elrod Op. at 7 (citing Spokeo, Inc. v. Robins, 578 U.S.
330, 340 (2016)); id. at 8 (citing Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 388 (5th Cir.
2017)); id. at 9 (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 170 (2000); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). The only
cited opinion addressing legislators’ standing is a concurrence in our court’s prior opinion
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The only case the majority discusses, Raines v. Byrd, 521 U.S. 811
(1997), undermines its view. See Elrod Op. at 8. Raines teaches that individual
lawmakers can’t sue to vindicate “a loss of political power” but only a “loss
of [a] private right.” 521 U.S. at 821. That principle defeats the
Commissioners’ standing. Each loss they assert is political, not personal.
They have no “private right” to the perquisites of office. Such benefits exist
“solely because [the Commissioners] are Members of [the JMAA].” Ibid.
The minute they leave office, the perks end. See ibid. (“If one of the Members
were to retire tomorrow, he would no longer have a claim; the claim would
be possessed by his successor instead.”). Their loss “thus runs with the
[Commissioner’s] seat, a seat which the [Commissioner] hold[s] as trustee
for his constituents, not as a prerogative of personal power.” Ibid. (cleaned
up). Translation: Commissioners enjoy these perks only because they are
public servants, not because they have a private right to expense the City of
Jackson for a New York Strip or a trip to Vegas.
The majority seeks support in this statement from Raines: “appellees
do not claim that they have been deprived of something to which they
personally are entitled—such as their seats as Members of Congress after
their constituents had elected them.” Elrod Op. at 8 (quoting Raines, 521 U.S.
at 821). But the majority divorces this statement from its context. Raines was
discussing Powell v. McCormack, 395 U.S. 486 (1969), where a Congressman
was allowed to “challenge . . . his exclusion from the House of
Representatives (and his consequent loss of salary).” Raines, 521 U.S. at
820–21 (citing Powell, 395 U.S. at 496, 512–14). As Raines explained, there
in this case. See Elrod Op. at 7 (citing Stallworth v. Bryant, 936 F.3d 224, 232–33 (5th Cir.
2019) (Higginbotham, J., concurring)). But that non-precedential opinion cites no authority
for its view that a Commissioner’s loss of “status and authority” as a public official
qualifies as a personal injury for Article III purposes.
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was standing in Powell only because Congressman Powell had been “singled
out for specially unfavorable treatment as opposed to other Members.” Id. at
821. The Court distinguished Powell’s personal harm from a claim of
“institutional injury, which necessarily damages all Members of Congress
and both Houses of Congress equally.” Ibid (cleaned up).
The Commissioners’ asserted injuries differ critically from the injury
in Powell. Congressman Powell was excluded from his seat by a House
majority after a subcommittee found he had committed financial
improprieties as a committee chairman. See Powell, 395 U.S. at 489–93. He
could therefore sue to redress this personal injury to him (and to his
constituents, who also sued). Id. at 493; see also Raines, 521 U.S. at 820–21.
By contrast, the Commissioners do not allege they have been singled out for
“specially unfavorable treatment.” Raines, 521 U.S. at 821. Rather, their
claimed injury is that the JMAA itself has been eliminated and, along with it,
their positions. This is what Raines described as an “institutional
injury . . . which necessarily damages all [Commissioners] equally.” Ibid.; see
also Kerr v. Hickenlooper, 824 F.3d 1207, 1214 (10th Cir. 2016) (“[I]ndividual
legislators may not support standing by alleging only an institutional injury.”)
(citations omitted). The Commissioners can’t circumvent Raines by claiming
that sunsetting the JMAA zeroes out their expense accounts. Those benefits
“run with the seat” and so aren’t “something to which [the Commissioners]
personally are entitled.” Raines, 521 U.S. at 821.
By allowing individual lawmakers standing to sue for an institutional
injury, the majority puts our circuit out of step with at least three others. 2
2
See Yaw v. Del. River Basin Comm’n, 49 F.4th 302, 311 (3d Cir. 2022)
(“[I]ndividual legislators lack standing to assert institutional injuries belonging to the
legislature as a whole.”); Maloney v. Murphy, 984 F.3d 50, 64 (D.C. Cir. 2020) (explaining
that legislators do not have standing for harms that “befell the institution as a whole and all
legislators collectively”); Kerr, 824 F.3d at 1216 (“An individual legislator certainly retains
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And this standing misadventure is notably harmful because it lets a federal
court continue to stick its nose into a political spat. Cf. id. at 819–20 (standing
should be “especially rigorous” when the merits would require “decid[ing]
whether an action taken by one of the other two branches of the Federal
Government was unconstitutional”); Ariz. State Legis. v. Ariz. Indep. Redist.
Comm’n, 576 U.S. 787, 859 (2015) (Scalia, J., dissenting) (arguing the
Framers “would be all the more averse to unprecedented judicial meddling by
federal courts with the branches of their state governments”). Various
government parties have been fighting over control of the Jackson airport,
now going on seven years. See Stallworth v. Bryant, 936 F.3d 224, 226–29 (5th
Cir. 2019). The case has already spawned two appeals, yet it remains mired
in debates over legislative subpoenas. See id. at 228–29. And while Judge
Elrod’s opinion correctly fixes one aspect of the district court’s overbroad
privilege waiver, see Elrod Op. at 11–12 3, it sends the case back for more
squabbling. Instead of doing that, I would hold the individual Commissioners
are not injured in any judicially cognizable manner, which would go a long
way toward ending federal involvement in this political dog fight.
I respectfully dissent.
the ability to bring a suit to redress a personal injury, as opposed to an institutional injury.”)
(citing Raines, 521 U.S. at 824 n.7; Powell, 395 U.S. at 550).
3
I agree with this part of Judge Elrod’s opinion, even though, left to my own
devices, I would find the legislators had no standing to begin with.
23