EXCLUSIVE: 5th Circuit’s Craven Ruling In Biden Social Media Case Was A ‘Clerical Error’

The 5th Circuit Court of Appeals this morning abruptly withdrew Monday’s order giving red states a chance for an even bigger win in a case that has blocked much of the Biden administration from flagging misinformation on social media sites. 

The 5th Circuit’s Clerk of Court told TPM that the original order was a “clerical error.” 

A three-judge panel had on Monday quickly granted the red states a rehearing as they seek to get another couple government agencies blocked from communicating with the tech companies. The judges did so without giving the government a chance to respond, seeming to run afoul of the Federal Rules of Appellate Procedure that govern the court. 

After the court withdrew that order Tuesday in a stunning turnaround, the court’s clerk told TPM that the withdrawal corrected a staff error. 

“The order today cures a clerical error made by my staff,” Clerk Lyle Cayce said in an email. “The court intended yesterday only to permit the filing of a motion for panel rehearing — but the order we entered made it appear that a rehearing was granted. That was erroneous and not in accordance with direction.”

“As you know, the mandate was issued forthwith, and the parties are still within the time permitted to request rehearing,” he added. “So, the order today withdrew the erroneous order and recalled the mandate, giving the court jurisdiction to consider any petition for rehearing filed by noon, September 28.”

The about-face by the appeals court appeared to come after the Justice Department, which is defending the government in the case, had brought the latest developments to the attention of the Supreme Court, which was already considering its stay request. In a blistering memorandum to the high court, Solicitor General Elizabeth Prelogar described the irregular move by the Fifth Circuit panel as a “procedural impropriety,” “unreasoned” and “unexplained.”  

“Although Federal Rule of Appellate Procedure 40(a)(3) provides that ‘no response to a petition for panel rehearing is permitted’ ‘[u]nless the court requests’ one and that ‘[o]rdinarily, rehearing will not be granted in the absence of such a request,’ the Fifth Circuit never requested a response from the government,” Prelogar wrote. “And although the Fifth Circuit had already issued its mandate — thereby divesting itself of authority over the case — the court also did not purport to recall the mandate or explain why that step would be justified.”  

By late this morning, the 5th Circuit panel addressed Prelogar’s complaints by giving the government a chance to respond to the petition — due Thursday at noon — and recalling its mandate, essentially shifting jurisdiction back into its own hands. It also asserted that the district court ruling would remain on ice until the rehearing petition is resolved, which is something the Justice Department has originally asked for and been denied. 

In an additional procedural wrinkle, these flip-flopping orders come as the Biden administration had already appealed the panel’s ruling to the Supreme Court, where it’s also requesting a stay. In Monday’s filing, Prelogar asked that the government’s stay request be applied to any expansion of the panel’s original ruling.

“A stay of any expanded injunction would also be warranted because of the procedural impropriety of substantially expanding the injunction after issuance of the mandate and without giving the government an opportunity to be heard,” she wrote. 

Read the panel’s order here: