According to his answers to the Senate Judiciary Committee questionnaire, Judge Pickering has been reversed in 26 cases that were appealed to the Fifth Circuit. In only one of those cases was there a dissent as to the issue on which Judge Pickering was reversed. In contrast, Judge Edith Brown Clement, who as noted above was recently elevated to the Fifth Circuit after serving as a district court judge for a slightly shorter period than Pickering, was reversed in only 17 cases. Even more troubling, Clement's questionnaire states that she was never reversed in an unpublished opinion by the Fifth Circuit, but Pickering was reversed 15 times in such opinions. According to Fifth Circuit Rule 47.5, unpublished rulings are used to decide "particular cases on the basis of well-settled principles of law." Eleven of those 15 cases in which Pickering violated "well-settled principles of law" involved constitutional, civil rights, criminal procedure, or labor issues, and raise troubling concerns about Pickering.
For example, in several unpublished reversals, Pickering committed clear errors of law in approving magistrate recommendations to reject constitutional claims. In Rayfield Johnson v. McGee, No. 2:96CV291PG (S.D. Miss., May 13, 1998), Pickering rejected an inmate's contention that a jail's blanket rule prohibiting inmates from receiving magazines by mail violated the plaintiff's First Amendment right to receive religious materials. After a "full review," Pickering accepted the magistrate's conclusion that the rule was justified to prevent fire hazards and the clogging of plumbing. The Fifth Circuit reversed, citing its own published decision more than ten years earlier in Mann v. Smith, 796 F.2d 79 (5th Cir, 1986), which was not even mentioned by Pickering or the magistrate. Rayfield Johnson v. Magee, No. 98-60556 (5th Cir., Feb. 15, 2000), slip op. at 3. In Mann, the court struck down a similar jail prohibition on the receipt of magazines by pre-trial detainees, rejecting fire hazard and plumbing justifications very similar to those accepted by Pickering and the magistrate. Mann, 796 F.2d at 82.
Pickering similarly adopted a magistrate's recommendation to deny, without a hearing, an inmate's motion to set aside a guilty plea because of ineffective assistance of counsel in U.S. v. Marlon Johnson, No. 1:97-CV-571PG (S.D. Miss., Oct. 2, 1998). The Fifth Circuit, in an unpublished decision written by Reagan-appointee Jerry Edwin Smith, vacated the ruling and remanded for a hearing on whether the prisoner had asked counsel to file a direct appeal of his conviction and whether the attorney had failed to do so. United States v. Marlon Johnson, No. 99-60706 (5th Cir., Dec. 7, 2000). According to the court of appeals, citing two published Fifth Circuit opinions, the inmate's "allegation that he asked his counsel to file a direct appeal triggered an obligation to hold an evidentiary hearing." Id., slip op. at 4. Neither Pickering nor the magistrate even mentioned either of these controlling rulings.
Another case in which Judge Pickering (as part of a three-judge district court) did not abide by published, controlling appellate precedent was Watkins v. Fordice, a voting rights case involving an award of attorneys' fees. Watkins v. Fordice, 852 F. Supp. 542 (S.D. Miss. 1994). In that matter, 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). The plaintiffs' attorneys 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)).
Several other reversals of Pickering's decisions involve issues concerning access to justice, and suggest a troubling haste by Pickering to deny such access to certain litigants. For example, in Hepinstall v. Blunt, No. H90-0254(P)(N) (S.D. Miss., May 19, 1992), Pickering imposed the ultimate sanction -- dismissal with prejudice (precluding the plaintiff from ever re-filing his claim) -- 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." Heptinstall v. Blount, No. 92-7481 (5th Cir., Aug. 11, 1993), slip op. at 5. 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.
In a published decision in a related case against Reichhold Chemicals reversing another access to justice ruling by Judge Pickering, the Fifth Circuit affirmed Pickering's denial of class certification, but vacated his dismissal of the plaintiffs' complaint based on what Pickering held to be a violation of a blanket order "of this Court" that all future suits against the defendant chemical company should be filed separately, with separate filing fees paid. Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571 (5th Cir. 1995), reversing No. 2:93-CV-190PR (S.D. Miss., July 7, 1994). In so ruling, the unanimous panel of the Fifth Circuit stated that "[g]enerally, permissive joinder of plaintiffs under Federal Rule of Civil Procedure 20 is at the option of the plaintiffs, assuming they meet the requirements set forth in Rule 20." 67 F.3d at 574 (emphasis added). While the court noted that a district judge has the discretion under Rules 20 and 21 to sever an action "if it is misjoined or might otherwise cause delay or prejudice," and discretion to sever claims under Rule 42(b), it held that "[t]his discretion, however, should be exercised after an examination of the individual case." Id. The court remanded the case to Pickering to consider whether the plaintiffs were properly joined and should be allowed to continue in one action.
In another case Pickering adopted, without opinion and after a "full review," a magistrate's recommendation to dismiss an inmate's petition for a writ of habeas corpus raising issues about the voluntariness of his confession to murder, which allegedly had been procured after he had been held incommunicado in a jail cell for approximately 80 hours. Barnes v. S.W. Puckett, No. H88-0223 (P) (S.D. Miss., June 4, 1992). The magistrate and Judge Pickering had considered the inmate's claims only under the Fourth Amendment. The Fifth Circuit, in an unpublished decision written by conservative Reagan-appointee Edith Jones, vacated Pickering's ruling, holding that the inmate's claims as to his uncounseled and allegedly involuntary confession raised constitutional issues under the Fifth, Sixth and Fourteenth Amendments that Pickering had failed to consider. Barnes v. Hargett, No. 92-7436 (5th Cir., Apr. 15, 1994).
In United States v. Arthur Loper, No. 1:94-CV-560PR (S.D. Miss., April 21, 1995), Pickering issued a four-line order summarily denying an inmate's motion to set aside his sentence, a sentence that the inmate contended had been imposed upon him illegally by Pickering. The petitioner was a federal inmate who had been convicted of a drug offense and was given an enhanced sentence by Judge Pickering because of a prior drug offense. The inmate contended that the enhanced sentence was illegal because the government had not filed a notice of enhancement as required by federal law. In an unpublished decision, the Fifth Circuit held that Pickering had abused his discretion in denying the inmate's motion, and vacated the sentence that Pickering had imposed. United States v. Loper, No. 95-60274 (5th Cir., May 27, 1996). The court of appeals cited the clear statutory requirement that under ordinary circumstances, the trial judge "shall ... grant a prompt hearing" and "make findings of fact and conclusions of law" on the petitioner's claims. 28 U.S.C. § 2255; slip op. at 3, n.2. Here, according to the Fifth Circuit, "without holding a hearing or ordering a response from the Government," Pickering "denied the motion in a one-page order that did not contain [his] reasoning." Slip op. at 2. In its ruling, the Fifth Circuit also pointedly reminded Judge Pickering that "[a] statement of the court's findings of fact and conclusions of law is normally 'indispensable to appellate review.'" Slip op. at 3. The court of appeals remanded the case so that the inmate could be resentenced. Judge Pickering's summary denial of the inmate's motion, without even seeking a response from the government, was itself troubling. In addition, according to the Fifth Circuit, the government conceded that "because of [its] failure to comply with [the sentencing law's] procedural requirements, the district court could not enhance Loper's sentence under the statute based on his prior drug conviction." Slip. op. at 3.
Last year, Pickering was again reversed in an unpublished opinion in an access to justice case. In United States v. Nix, No. 1:91cr40PR (S.D. Miss., May 30, 2000), he threw out as too late an attempt by criminal defendants to file an appeal of the dismissal of their motion for a new trial. The defendants' notice of appeal was filed late because, they claimed, the court clerk had not mailed a crucial notice to their current address. Pickering held that the defendants were at fault for not providing written notice of their change of address, allegedly violating a local rule notifying them of a "continuing obligation to apprise the court of any address change." United States v. Nix, No. 99-60069 (5th Cir., Mar. 7, 2001), slip op. at 7. The defendants claimed that they had given such notice orally, that they had sent documents to the court marked with their current addresses, and that the court had mailed correspondence to those addresses prior to the dismissal of their motion. The Fifth Circuit held that Pickering's construction of the Local Rule to require written notice was "unfair" and "unreasonable in the light of the plain meaning of the word 'apprise' and the lack of any reference to a writing requirement." United States v. Nix, No. 99-60069 (5th Cir., Mar. 7, 2001), slip op. at 8. The court also criticized Pickering for determining at that point that the underlying motion for a new trial was in bad faith and that this "poisons all pleadings and filings made in the furtherance of it." Id., slip op. at 9.
Most of the opinions in the Fifth Circuit's unpublished rulings reversing Pickering were written per curiam by all three judges and do not list a single judge as their author. The panels in a number of these cases, however, included some of the most conservative members of the Circuit appointed by Presidents Reagan and Bush, such as Edith Jones, Rhesa Barksdale, and Emilio Garza. The Fifth Circuit is widely regarded as one of the most conservative in the country, and has already issued a number of rulings significantly limiting civil and constitutional rights, some of which have been reversed as too conservative by the Supreme Court. Adding Judge Pickering to the Fifth Circuit would only further increase the threat to the civil and constitutional rights of all Americans.