USA v. Abbott, 23-50632, No. 268 (5th Cir. Aug. 8, 2024)

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USA v. Abbott, 23-50632, No. 268 (5th Cir. Aug. 8, 2024)

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Case: 23-50632 Document: 268 Page: 1 Date Filed: 08/08/2024
`
`
`MTG
`90-5-1-1-22454
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`Appellate Section
`P.O. Box 7415
`Washington, D.C. 20044
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`BY CM/ECF
`
`Mr. Lyle W. Cayce, Clerk of Court
`United States Court of Appeals
`For The Fifth Circuit
`600 S. Maestri Place, Ste. 115
`New Orleans, Louisiana 70130
`
`Re: United States v. Abbott, No. 23-50632
`
`Dear Mr. Cayce:
`
`
`U.S. Department of Justice
`
`Environment and Natural Resources Division
`
`Telephone (202) 532-3147
`Facsimile (202) 514-0557
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`August 8, 2024
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`At this Court’s direction, the United States responds to the letter submitted on
`August 6, 2024, by Texas regarding a status conference held in the district court on
`the same day, a week after the en banc Court entered judgment in this appeal. Texas’s
`letter is extra-procedural, it pertains to a status conference where nothing of note
`happened, and it does not ask this Court to do anything. The Court should simply
`ignore it.
`
`Texas has now filed the transcripts of the August 6 status conferences as well
`as an August 7 follow-up status conference, which speak for themselves.
`
`Texas’s letter concerns the status conference held on August 6. At that
`conference, the district court observed that the lead opinion in this appeal was joined
`by exactly half of the members of the en banc panel, and the district court wondered
`what, if anything, that meant for the legal standards that would govern at the trial. The
`district court therefore ordered briefing on the question. The court said over and over
`that it had not decided anything about the issue but wanted to consider it carefully
`before trial. Transcript at 4, 7-8, 18. There is no basis for Texas’s intimating that the
`district court might not follow this Court’s mandate. Letter at 1 (citing M.D. ex rel
`Stukenberg v. Abbott, 977 F.3d 479, 483 (5th Cir. 2020)).
`
`
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`Case: 23-50632 Document: 268 Page: 2 Date Filed: 08/08/2024
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`At the end of its letter, Texas appears to fault the district court for ordering the
`parties to refile motions in limine at a later date, but Texas itself suggested that.
`Transcript at 28 (Texas suggesting “the parties can pull down any of those kind of
`discovery motions and fights so that they’re not pending on your sheet” until a later
`date). Similarly, Texas notes the district court stated it may consider reopening
`discovery in the future. The district court has not reopened discovery, and at present
`neither party has asked that discovery be reopened. Texas’s inclusion of this detail is
`thus irrelevant to any proceeding before this Court.
`
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`As Texas has not requested post-judgment relief from this Court, the Court
`should do nothing, and should allow the case to proceed in the normal fashion.
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`s/Michael T. Gray
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`Respectfully submitted,
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`cc: Counsel of Record
`
`

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