Jackson Mun. Airport Auth. v. Harkins

1

Jackson Municipal Airport Authority; Board of Commissioners of the Jackson Municipal Airport Authority, each in his or her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; Doctor Rosie L. T. Pridgen, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; Reverend James L. Henley, Jr., in his official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; LaWanda D. Harris, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; Vernon W. Hartley, Sr., in his official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; Evelyn O. Reed, in her official capacity as a Commissioner on the Board of Commissioners of the Jackson Municipal Airport Authority; Doctor Rosie L. T. Pridgen, individually as citizens of the City of Jackson, Mississippi, on behalf of themselves and all others similarly situated; LaWanda D. Harris, individually as citizens of the City of Jackson, Mississippi, on behalf of themselves and all others similarly situated; Vernon W. Hartley, Sr., individually as citizens of the City of Jackson, Mississippi, on behalf of themselves and all others similarly situated; Evelyn O. Reed, individually as citizens of the City of Jackson, Mississippi, on behalf of themselves and all others similarly situated; James L. Henley, Jr., individually as citizens of the City of Jackson, Mississippi, on behalf of themselves and all others similarly situated, Intervenors-Appellees, v. Josh Harkins; Dean Kirby; Phillip Moran; Chris Caughman; Nickey Browning; John A. Polk; Mark Baker; Alex Monsour, Respondents-Appellants.

No. 21-60312

United States Court of Appeals, Fifth Circuit

August 25, 2023

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:16-CV-246

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge: ^{[*] [†]}

We withdraw our previous opinion, reported at 67 F.4th 678, and substitute the following:

* * *

A group of Mississippi legislators appeals a district court order instructing them to produce: (1) a privilege log; and (2) communications and documents that have been shared with third parties. We hold that the district court did not abuse its discretion in ordering the Legislators to produce a privilege log. But the district court erred in broadly holding that legislative privilege was automatically waived for any documents that have been shared with third parties. Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I

The Jackson-Medgar Wiley Evers International Airport is a major airport located in Jackson, Mississippi. Since 1960, the airport has been operated by the Jackson Municipal Airport Authority, whose five commissioners are selected by the city government. But in 2016, the Mississippi legislature passed and the governor signed into law, SB 2162. Id. § 61-3-6. SB 2162 abolishes the Jackson Municipal Airport Authority and replaces it with a regional authority composed of nine commissioners, only two of whom are selected by Jackson city government. Id.

Shortly before the Governor signed SB 2162 into law, a Jackson citizen filed a suit seeking to enjoin the law. The mayor the city council, the Jackson Municipal Airport Authority its board of commissioners, and the commissioners in their individual capacities intervened in that lawsuit. The intervenors contend that SB 2162 violates the Equal Protection rights of the citizens of Jackson by eliminating the locally controlled Jackson Municipal Airport Authority for racially discriminatory reasons.

During discovery, the intervenors served subpoenas on eight nonparty state legislators who participated in SB 2162's drafting and passage. The Legislators refused to comply with Request #3 in the subpoena, which sought documents and communications related to SB 2162, asserting that any responsive discovery would either be irrelevant or protected by legislative privilege. The magistrate judge, and later the district court, rejected this position. The order noted that because legislative privilege is qualified, the Legislators must produce a privilege log before any assertions can be assessed. It also held that the "privilege has been waived for documents that have been shared with third parties," and that "the Legislators must produce the nonprivileged documents responsive to Request #3." The Legislators appealed and a panel of this court vacated the district court's order. Stallworth v. Bryant, 936 F.3d 224 (5th Cir. 2019). But the panel did not reach the merits because it held that the Commissioners lacked standing. Id. at 229-32.

On remand, the district court allowed the plaintiffs to amend their complaint to cure the standing defect and add two newly appointed commissioners as plaintiffs. The Commissioners again served subpoenas on the Legislators seeking the exact same information as the prior subpoenas. The Legislators again objected on the basis of legislative privilege; the district court again ordered the Legislators to comply with the subpoena; and the Legislators again declined and appealed.

This appeal raises four issues: (1) whether this court has appellate jurisdiction; (2) whether the Commissioners have standing; (3) whether legislative privilege relieves the Legislators from having to submit a privilege log; and (4) whether the district court erred in holding that legislative privilege was waived for any documents that have been shared with third parties.

II

We review questions of subject-matter jurisdiction de novo. Houston Refin., L.P. v. United Steel, Paper &Forestry, Rubber, Mfg., 765 F.3d 396, 400 (5th Cir. 2014). A subpoena enforcement order is generally reviewed for abuse of discretion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016). But we review a district court's determination of controlling law de novo. In re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003).

III

Generally appellate jurisdiction is statutorily confined to review of "final decisions." 28 U.S.C. § 1291. But "the Supreme Court 'has long given' § 1291 a 'practical rather than a technical construction.'" Leonard v. Martin, 38 F.4th 481, 486 (5th Cir. 2022) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). Accordingly, "[s]ection 1291 encompasses not only the final decisions that terminate an action, but also a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final." Id. (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)) (internal quotation marks omitted).

Under this court's precedent, the Legislators have the right to immediately appeal the district court's order. Our decisions in Cates and Branch are instructive. Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir. 1973); Branch v. Phillips Petroleum Co., 638 F.2d 873, 879 (5th Cir. 1981). In Cates, we considered whether a subpoena upon a government representative can be used to obtain documents that are not in the custody of that representative. Before addressing the merits, we first considered whether appellate jurisdiction existed. We held that it did because "discovery orders may be appealable" when governmental privilege is involved and the government "is not a party to the lawsuit." Cates, 480 F.2d at 622.

While our decision in Cates only considered an instance where the subpoenaed entity was not in custody of the relevant documents, our subsequent opinion in Branch observed that "Cates clearly extends the right of immediate appeal to the government even when it is itself in custody of the subpoenaed material." 638 F.2d at 879. Likewise, relying on this court's holding in Cates and Branch, the Eleventh Circuit has held that "one who unsuccessfully asserts a governmental privilege may immediately appeal a discovery order where he is not a party to the lawsuit." In re Hubbard, 803 F.3d 1298, 1305 (11th Cir. 2015). Thus, in accordance with our precedent and the Eleventh Circuit's decision in Hubbard, we hold that appellate jurisdiction exists in this case. Id.; Cates, 480 F.2d at 622; Branch, 638 F.2d at 879; see also Leonard, 38 F.4th at 487 (observing that the Fifth Circuit "allows immediate appeal of orders" that "implicate[] 'some particular value of a high order' or 'substantial public interest' that would be imperiled or destroyed if review were delayed until after entry of an archetypal final judgment." (quoting Mohawk, 558 U.S. at 107)).

The Commissioners argue that we lack appellate jurisdiction here because "[n]othing about the district court's order forces 'disclosure' of any documents." The Commissioners assert that the order "merely requires the Legislators to provide a privilege log." Citing our decision in Banca Pueyo, the Commissioners argue that we lack appellate jurisdiction here because the order is merely a preliminary step in the resolution of this discovery dispute. Banca Pueyo SA v. Lone Star Fund IX (US), L.P., 978 F.3d 968 (5th Cir. 2020).

But the order here is not merely a preliminary step because it specifically ordered the Legislators to produce any documents that had been shared with third parties. Contrary to Judge Dennis's partial dissent, the magistrate judge's finding is not just a "summary of the state of the law regarding legislative privilege." Post, at 15. The order stated:

The Court finds that to the extent documents or information otherwise protected by the legislative privilege have been shared with third parties, the privilege has been waived. Accordingly, the Legislators must produce those

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