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The Llano County Library lawsuit is back on hold. An unnamed judge in the U.S. Fifth Circuit Court of Appeals in New Orleans requested “the issuance of the mandate” be withheld until further review.

The mandate, or majority opinion, was issued on June 6 and upheld most of a preliminary injunction ordered by a lower court in the ongoing U.S. District Court case of Leila Little et al. v Llano County et al. The preliminary injunction involved returning 17 banned books to library shelves and the online catalog. The appeals court said eight of those books must be returned as they were removed due to the opinions of government officials.

The court’s mandate also stated that the plaintiffs in the case “demonstrated a likelihood of success on the merits of their First Amendment claim.” A three-judge panel split 2-1 in the opinion.

According to a deputy clerk at the Fifth Circuit Court of Appeals, any judge can ask a mandate be held for review by the full court, which includes 17 active judges and nine senior judges. Judge Jacques Wiener, who wrote the majority opinion in the Llano County Library appeal, is one of the senior judges. 

The court never reveals which judge makes the request for review, which could lead to a hearing of the case en banc, a French term that means “on the bench.” If en banc is granted, the full court would review the matter. En banc only occurs in rare, complex cases. Of the 5,700 appeals rulings issued in the past year, only 10 were en banc cases. 

The deputy clerk said the judge can release the mandate at any time or call for a poll of the full court, minus any judges who have to recuse. No timeframe is set. It takes “as long as they feel necessary,” the clerk said. 

Only the judges are involved in the discussion. Until about a year ago, the appeals court did not publicly announce when a judge asked for an en banc review. The court decided to make the process more transparent because of the number of calls and questions received in the past. 

suzanne@thepicayune.com 

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