Editorial Memorandum: The Right's Revisionism on the Defeat of the Pickering Nomination

Part Three

Also ignored by Senator Hatch were two other cases raised by Senator Leahy in which Pickering was reversed for his haste in imposing the ultimate sanction on a plaintiff -- dismissal with prejudice (precluding the plaintiff from ever re-filing his or her claim) -- as a first sanction, despite precedent making this a sanction of last resort. For example, in Hepinstall v. Blunt, No. H90-0254(P)(N) (S.D. Miss., May 19, 1992), Pickering dismissed the complaint with prejudice as a first sanction on an inmate claiming violation of his constitutional rights. The defendants had noticed the deposition of the plaintiff, who declined to appear without counsel. When the defendants threatened to move for dismissal, the plaintiff answered several questions and then abruptly ended the deposition. Pickering dismissed the case with prejudice as a sanction. Citing prior case law, the Fifth Circuit held in an unpublished decision that such a dismissal with prejudice "is a 'remedy of last resort' which should only be applied in extreme circumstances." Hepinstall v. Blount, No. 92-7481 (5th Cir., Aug. 11, 1993), slip op. at 5.4 Pickering's unpublished order cited no case law on sanctions and referred to no special circumstances, but simply stated that he considered his sanction "appropriate." Hepinstall v. Blunt, No. H90-0254(P)(N), slip op. at 4.

Three years later, Pickering was again reversed by the Fifth Circuit without a published opinion for dismissing claims with prejudice -- this time, the claims of eight plaintiffs in a toxic torts case, which were dismissed for failure to comply with a case management order. Abram v. Reichhold Chemicals, No. 2:92-CV-122PR (S.D. Miss., Nov. 1, 1995). Citing a published ruling, the Fifth Circuit explained that such dismissal was appropriate only where the failure to comply "was the result of purposeful delay or contumaciousness and the record reflects that the district court employed lesser sanctions before dismissing the action." Abram v. Reichhold Chemicals, No. 95-60784 (5th Cir., July 2, 1996), slip op. at 3 (emphasis in original). Despite the Fifth Circuit's prior ruling in his Hepinstall case and the governing case law, Pickering did not even acknowledge the importance of utilizing lesser sanctions before throwing a case out of court. In reversing Pickering, the Fifth Circuit pointedly noted that the record did not reflect the "required prior recourse to lesser sanctions and we necessarily must conclude that the dismissal order was granted improvidently." Slip op. at 3.

Senator Hatch apparently had no answer for Pickering's actions in the cases of concern that he failed to address, while purporting to demonstrate that the concerns were unfounded. The only reversed decision of Judge Pickering's that was cited in our report and also mentioned by Senator Hatch on March 14 was in the case of Watkins v. Fordice. Senator Hatch's comments about that case, however, reflect a misunderstanding or misinterpretation of the nature of the concern raised. According to Senator Hatch, opponents of Pickering's confirmation were concerned about this case because it allegedly showed Pickering's hostility toward voting rights. In fact, Pickering's hostility toward laws and principles protecting voting rights, as we explained in our report, was demonstrated by Pickering in other decisions as a judge and in his actions as a state senator. (See PFAW Report at 3-9.)

Although Watkins v. Fordice was a voting rights case, our report made it expressly clear that the ruling reversed on appeal concerned an award of attorneys' fees. As we stated, in Watkins v. Fordice, "a unanimous Fifth Circuit reversed the decision of the three-judge district court, of which Judge Pickering was a part, on the issue of the hourly rate to be used in calculating the fees. Watkins v. Fordice, 7 F.3d 453 (5th Cir. 1993)." (PFAW Report at 12.) The plaintiffs' attorneys in that case had sought fees based on their customary billing rates. The three-judge court declined to award fees based on the attorneys' normal rates, but did not say why. The Fifth Circuit "reluctantly" remanded the case so that the district court could either "award each attorney's customary billing rate" or "state the reasons for its decision to do otherwise." 7 F.3d at 459. In so ruling, the Court of Appeals cited an earlier decision of its own in which the court had "held that if the attorney's normal billing rate is within the range of market rates for attorneys with similar skill and experience, and the trial court chooses a different rate, the court must articulate its reasons for doing so." Id. (emphasis added, citing Islamic Center of Miss. v. Starkville, 876 F.2d 465, 469 (5th Cir. 1989)).

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