As Expected, USDC Judge Moses Is Very Concerned About Asylum-Seeking Moms And Babies... Drowning In The Rio Grande. Texas Gov. Abbott Is In... Hot Water.

Overnight, the Del Rio federal courts entered an order -- preparing both sides for what the arguments on March 4 and 5, 2024 will center around.

And this presaging in no manner favors the lawless position of the State of Texas. We will keep you posted, but here it is:

. . .It is ORDERED that the parties at the March 4, 2024 and March 5, 2024 hearings be prepared to discuss whether the Fifth Circuit Court of Appeals remanded this case for the Court to make new factual findings only, or to make legal determinations in light of new factual findings to be made after taking evidence.

It is FURTHER ORDERED that the parties at the March 4, 2024 and March 5, 2024 hearings be prepared to discuss how new factual findings may impact appellate review of the Court's November 29, 2023 preliminary injunction decision, considering that the evidence to be taken at the hearings will not have been before this Court before the preliminary injunction decision was entered. It is

FURTHER ORDERED that at the March 4, 2024 and March 5, 2024 hearings, the parties submit photographs, videos, and maps needed to make new factual findings.

It is FURTHER ORDERED that the scope of the March 4, 2024 and March 5, 2024 hearings include all the issues raised in the parties' joint brief [ECF No. 83], including but not limited to:

A. The Defendants' use of and access to Shelby Park and surrounding areas;

B. The Plaintiff's control of municipal and non-municipal land in and around Eagle Pass, Texas since November 29, 2023;

C. The scope of the physical area that the Plaintiff has occupied in and near the Shelby Park area since November 29, 2023;

D. The Defendants' access to the Rio Grande in and near the Shelby Park area since November 29, 2023, including but not limited to boat ramp access;

E. The Defendants' ability to surveil the border, patrol the border, apprehend migrants,process migrants, and perform other duties in and near the Shelby Park area since November 29, 2023;

F. The Defendants' ability to respond to medical emergencies in and near Eagle Pass,Texas since November 29, 2023, including the Defendants' ability to access Shelby Park and surrounding areas on or about January 12, 2024;

G. Events in and near the Shelby Park area on or about January 12, 2024, including but not limited to migrant drownings; and

H. The frequency of migrant crossings in and near Eagle Pass, Texas since November 29,2023.

Signed by Chief Judge Alia Moses. (jaw) (Entered: 02/16/2024). . . .

Now you know. Onward -- but still shaken by Alexei's murder in the arctic prison -- by Putin and his thugs.

नमस्ते

USDC Judge Moses In Del Rio, Texas, Orders Unredacted, SEALED Production Of Emails... Not Sure That's Cricket.

As a fact finder, she does have broad latitude, under the Fifth Circuit order, for the next 40 or so days. [She's let about 20 pass without much action.]

But the press has a keen and Constitutional interest (under the First Amendment) to see the proceedings of a federal judge who seems to be shielding Texas Gov. Abbott from consequences of violating federal law, on the border.

So, if Davis Wright Tremaine doesn't soon file a motion to place at least redacted portions into the public record there -- I will, pro bono publico. And given that three humans died as a result of Abbott's concertina wire barriers in mid-January, the court (and, even -- if need be, on appeal) will recognize this right. ["We the People" will suffer no star chambers.]

More specifically, absent a documented showing of unreasonable administrative burdens, the public’s right to contemporaneous access to judicial records cannot be overcome. See, e.g., Courthouse News Serv. v. Planet, No. CV 11-08083 SJO (FFMx), 2016 U.S. Dist. LEXIS 105197, at *62 (C.D. Cal. May 26, 2016) (“to the extent Planet might argue that such a practice would have been cost-prohibitive or unduly labor intensive, he has not quantified the cost. . . nor has he detailed the additional labor that would have been required. . .

Absent such evidence, the Court cannot ‘articulate facts demonstrating an administrative burden sufficient to deny access.’”) (citation omitted), aff’ in part rev’d in part, 947 F.3d 581, 597 (9th Cir. 2020) (holding that “Ventura County’s no-access-before-process policy bears no real relationship to the County’s legitimate administrative concerns about. . . efficient court administration”); see also United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding unconstitutional the district court’s maintenance of a dual-docketing system, where certain docket entries were visible only to the parties, and expressly rejecting the argument that unsealing would bind the court to a “formal procedure that is unduly burdensome”).

The public and the media have a qualified right of access to judicial proceedings that can be overcome only by an on-record, formal showing of good cause. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310-12 (11th Cir. 2001); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).

There can be no compelling "national security" interest in hiding how Texas effectively killed those three would-be asylum seekers, in the Rio Grande. These were not spies or hostile agents. They were a young mother and her two children. Damn.

A desire “to keep indiscreet communications out of the public eye” is not enough to demonstrate good cause. Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1364 (11th Cir. 2021).

Here's the order -- entered last night:

. . .It is ORDERED that the parties provide to the Court any and all documents involving communications, including but not limited to reports and emails, regarding or referencing the Plaintiff's border wire barriers or Plaintiff's other barriers, including but not limited to concertina wire barriers, as well as any and all documents which regard or reference impediments to Federal agents' performance as a result of the barriers; It is FURTHER ORDERED that the time period for the foregoing document production range from and including November 9, 2023, to the present; It is FURTHER ORDERED that the parties provide this document production under seal, ex parte, and without any redaction so that the Court reviews these documents in camera; It is FURTHER ORDERED that, as an emphasis, the Court will not exchange this document production among the parties unless the parties e-file a document expressing affirmative consent to same; It is FURTHER ORDERED that where a privilege is asserted, the parties identify that privilege; It is FURTHER ORDERED that the parties' production of these documents waives no privilege; and It is FURTHER ORDERED that the parties produce these documents by February 21, 2024, through a virtual link that the Court will send to the parties, and that the parties have a duty to supplement these documents through that virtual link.

Signed by Chief Judge Alia Moses. (jaw) (Entered: 02/07/2024). . . .

Well. . . that ought to set up a serious NYT or WSJ challenge -- if not the Dallas, Houston or San Antonio papers.

Onward.

नमस्ते

Texas Land Razor Wire Case: Gov. Abbott Owes His Brief In Fifth Cir. By Jan. 16; Mr. Biden's DHS Brief Is Due January 26; Argument Will Be February 7, 2024...

The "as expedited" schedule was set, in an order entered in the Fifth Circuit this afternoon, in Houston.

The loser, Gov. Abbott, now owes his brief (to try to keep enjoining the feds) in 14 days, the federal agencies are due in 24 days. [But to be clear, DHS and CBP are allowed to keep cutting the razor wire barriers -- to "inspect" any person they see on the wrong side of it, throughout the appeal process.] Thus:

. . .The above referenced case has been scheduled for oral argument on 02/07/2024. It will be held in Houston at the Bob Casey Courthouse in Courtroom 11-D- at 9:00. The Oral Argument session number is 26.

Arguing counsel is responsible for electronically filing the Oral Argument Acknowledgment Form by no later than January 16, 2024. . . .

Now you know (slight delay due to longish afternoon bike trail in desert. . . riding). Onward, into a better 2024. . . smile.

नमस्ते

In Which USDC Judge Alia L. Moses Enters A Largely Trivial Order, Right Before Christmas, In Del Rio, TX...

The only thing that matters, is that the federal CBP and DHS have until mid-March of 2024 -- to answer the Texas complaint. [By then, the Fifth Circuit may have already tossed the case.]

Rather churlishly, though, she declined to stay her proceedings while the Fifth Circuit (and perhaps Supremes) decide whether federal statutes unchanged though nearly a half-century's worth of litigation practice. . . mean what they say, at 8 USC § 1225(a)(1) and (3), regarding immigration matters -- at the border.

No. . . she chose instead to write (rather imperially) in her two page order's conclusion ". . .matters pending in this Court may be clarified by any decision by the Fifth Circuit Court of Appeals. . . ."

Welp. . . in fact, Judge Moses -- they may be obliterated, too. Not just "clarified".

The feds have the right to "inspect" people at our border. See 8 USC § 1225(a)(1), and (3). The razor wire (without serious dispute) is impeding that Congressional mandate.

Game over.

Onward -- be excellent to one another!

नमस्ते