Photo of Laura Springer Brown

The jurisdictional contest over the proper forum for Louisiana’s sprawling coastal land loss litigation continues as petitions for panel and en banc rehearings on federal jurisdiction pend before the U.S. Fifth Circuit Court of Appeals. Meanwhile, the plaintiffs’ strident effort to return to the state courts, located in the coastal Parishes whose governments have sued the industry, has yielded an opinion involving the jurisdiction of federal district courts during an appeal.

On September 11, 2020, Judge Feldman of the Eastern District of Louisiana denied the plaintiffs’ motion to order the Clerk of Court to mail a remand order in Plaquemines v. Riverwood to state court, unpersuaded that he “may or must exercise simultaneous jurisdiction by acting on a matter presented to the Fifth Circuit for decision in a case where appellate proceedings are not final but, instead, remain active.”

The procedural background involves Judge Feldman’s remand of the case and stay of the remand order pending appeal. In August, the Fifth Circuit affirmed Judge Feldman’s remand order, but subsequently granted the defendants’ request for an extension to petition for rehearing. Meanwhile, the Fifth Circuit also granted a motion filed by the Plaintiffs last year (and carried with the appeal of the remand order) to vacate Judge Feldman’s stay order. Following this action, the plaintiffs asked Judge Feldman to order the Clerk to mail a certified copy of the remand order to the state court, while the defendants asked the Fifth Circuit to reconsider that action.

In denying that motion, Judge Feldman observed that filing a notice of appeal “is an event of jurisdictional significance,” divesting the district court of jurisdiction over aspects of the case involved in the appeal. Asking the Court to execute the remand order “wholly ignore[s] the settled jurisdictional principle generally forbidding simultaneous jurisdiction among the district and appellate courts.” Judge Feldman reasoned that, like the notice of appeal, “mandate serves as a fulcrum of the vesting of jurisdiction. Pursuant to the Federal Rules of Appellate Procedure, issuance of mandate is delayed until after the Court of Appeals rules on any timely petitions for rehearing or rehearing en banc[.]”

Because the judgment of the Fifth Circuit panel is not yet final, mandate has not issued, and in fact “the mandate date has been cancelled while the Fifth Circuit considers the defendants’ petitions for rehearing.” In denying Plaintiffs’ motion, Judge Feldman’s opinion provides reasoned guidance on the limits of district courts’ “dual jurisdiction” relative to concepts of mandate.

The case is The Parish of Plaquemines v. Riverwood Production Co., No. 18-5217 (E.D. La.).

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.