Federal Judge Just Doesn’t Feel Like Reading The Fifth Circuit’s Cases

// Listen, I get it — I’d like to ignore the Fifth Circuit too. What with them unilaterally deciding to blow up the Securities and Exchange Commission, or their wackadoo interpretation of the First Amendment, or their jurisprudence on private corporations mandating COVID vaccines — and those are just their decisions over the last few months! They’ve quickly become the laughing stock amongst other appellate jurisdictions.

But, I dunno… a district court judge refusing to read the decisions of the appellate jurisdiction they sit in? That doesn’t seem like how the system is supposed to work.

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U.S. District Judge Fred Biery of the Western District of Texas in San Antonio recently garnered attention for admitting he won’t read Fifth Circuit cases. The following comes via a motion to suppress hearing in an illegal possession of a firearm case:

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According to a 5th Circuit footnote, Biery scheduled the hearing and stated: “I follow Judge [Lucius Desha] Bunton’s rule about 5th Circuit opinions: ‘They can reverse me if they want to, but they can’t make me read it,’ which I’m glad you all have read it. But I also—if my recollection is correct, none of those fine judges have ever tried a case or dealt with what we deal with on the street. But, anyway, what do I know?”

While Biery (and Bunton) were both appointed by Democratic presidents, ignoring the Fifth Circuit is much more of a bipartisan affair. District court Judge Lynn Hughes (Reagan nominee) recently got benchslapped by the Fifth Circuit for basically deciding to ignore discovery.

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In a statement to the ABA Journal, Biery backed away from cheeky comments as mere “courtroom banter”:

“I read the opinions,” Biery said. He said his remark was “a Judge Bunton-ism that gets passed down through the years.”

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And I guess for the whole “rule of law” thing it’s good Biery is reading the Fifth Circuit’s work. But, what with lifetime appointments being what they are, there wouldn’t be much to be done if he were serious.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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5th Circuit, Courts, Fifth Circuit, Fred Biery