The entire 5th Circuit Court of Appeals ruled that Texas could keep its border barrier as the court rehearsed the case against court rulings that declared the buoys illegal.
“Enclosed is the court’s order filed this date directing this case be reheard en banc with oral argument,” wrote Angelique Tardie, the deputy clerk. “Under Fifth Circuit Local Rule 41.3 this order vacates the previous opinion and judgment of this court and stays the mandate.”
President Joe Biden’s administration has been dragging Texas through the courts to force the state to remove the barriers.
In September, Judge David Alan Ezra of the U.S. District Court Western District of Texas – Austin Division ordered Texas to remove the buoys from the Rio Grande in a preliminary injunction.
Ezra gave Texas until September 15 to remove the barrier.
Texas appealed.
The 5th Circuit panel temporarily halted Ezra’s order.
In December, a split three-judge panel of the 5th Circuit, 2-1, sided with Ezra‘s ruling to remove the buoys.
Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton sought an en banc hearing from the 5th Circuit.
An en banc hearing consists of all the appellate court’s judges.
Texas got lucky since the hearings are rare. However, courts will usually grant the consideration if they “believe that the matters are especially complex or important.”
“We request that the parties forward 22 copies of their previously filed merits briefs, reply briefs, supplemental briefs, and record excerpts, for the use of the en banc court,” continued Tardie. “As you did previously, we request that all copies be spirally bound. These additional copies are due in the Clerk’s Office by January 31, 2024.”
The 5th Circuit gave the appellants until February 16 to file an en banc brief.
The en banc brief is due on March 18.
The court will hear the case in May.
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