If a federal judge has to land on Texas Lawyer ‘s annual Slowpoke Report, it might as well be for an interesting reason. That’s what happened in 2011 to U.S. District Judge Andrew Hanen of Brownsville, who had an unusually high 173 civil cases pending for more than three years on his docket — more than any other federal judge in the state.
Pursuant to the Civil Justice Reform Act of 1990, each year U.S. district judges must disclose the number of civil cases they have pending for more than three years and the number of civil motions they have pending for more than six months. Most judges like to keep those numbers below 10 in both categories.
Hanen says all 173 of the aging cases are related disputes in which the U.S. government, on behalf of the U.S. Department of Homeland Security (DHS), filed eminent-domain proceedings against hundreds of Texas landowners as part of a government project to build new sections of fence along the U.S.-Mexico border. Those cases began piling up on his docket in 2008, he says. Because several other Southern District judges recused themselves from hearing those cases, then-Southern District of Texas Chief Judge Hayden Head three years ago assigned Hanen to hear all of them.
“And at some point I had so many of them, it just made sense for me to have all of them,” Hanen says.
The DHS cases are completely different than the typical drug and immigration litigation to which the border judge has become accustomed. “It’s unusual, certainly. And it provides a little spice to your life,” Hanen says of the DHS litigation.
Hanen is plowing through the DHS cases, which numbered more than 300 separate complaints at one point, dealing with all of the major takings issues that are common in eminent-domain cases — but on a grander scale, he says.
While the U.S. government is no stranger to taking private land, rarely does it take parcels of land from hundreds of landowners at the same time, Hanen explains. To decide issues in the cases, Hanen had to examine case law dating back to the late 1930s and early 1940s, the last time the U.S. government took a large amount of land from numerous landowners. The reason behind those takings was to create the Tennessee Valley Authority and to build military bases during World War II, he says.
Hanen says he long ago resolved the major issues in the cases, finding that the government has an interest in the land and can build the fence. Now most of the decisions he must make concern the value of the property the government is seeking from private landowners, he says.
“It’s been interesting for me,” Hanen says of the cases. “And any time you get an issue like this where the lawyers really have done great work on it — they’ve acted professionally on it, agreed and fought where they needed to fight — it makes a judge’s job a lot easier.”
Hanen says he is ready to give the parties in each case a trial any time they want and last spring he contacted all of the attorneys involved. “I wanted to make sure that I wasn’t ignoring anybody, and I said, ‘Is there anything the court needs to do on these cases?’ And the answer was basically, ‘No.’ “
“I’m not complaining,” Hanen says of the large number of DHS cases on his docket. “There are a lot worse things that could have happened.”
Many of those cases will be on Hanen’s docket for years to come, says Kim Loessin, a partner in Houston’s Barron & Adler who represents landowners in 25 of the DHS complaints.
“I think there is going to be a significant number of cases remaining on his docket for awhile,” Loessin says. “In order to settle cases, generally appraisal work needs to be done, at least on the government’s side if not on both the government and the landowner’s side. And that has made for an extremely slow process. My sense is that he could have these cases for a couple of years.”
John Smith and Paxton Warner, two assistant U.S. attorneys in the Southern District of Texas who represent the government in the DHS cases, agree with Loessin. The majority of eminent-domain cases pending on Hanen’s docket are not considered contested cases — the landowners have agreed to sell the land, they say.
“We call them ‘the friendly cases’ versus ‘the contested cases.’ The friendly are the ones we have agreed on the dollar amount but there are just things that need to be cleaned up in title work,” Smith says.
Cleaning up the title work, Smith and Warner say, is not as easy as one might expect. As an example, Warner says the government has made offers to pay some landowners for parcels of land, only to discover after title searches that those people don’t own the land. “That is indicative of what is now going on in our project,” he says.
“What we’re finding is some of this land goes back in a family for generations and some of the pieces [of the puzzle] are: Who owns this land?” Smith says. “Some family members didn’t realize that they owned the land.”
Smith says he is glad the cases landed in Hanen’s court; it is the kind of mass litigation best handled by one judge. “I think it’s been good having all of the cases in one court just for the consistency of the landowners,” he says.
10 or More
The Southern District had two other jurists who had 10 or more civil cases pending longer than three years: U.S. District Judge Lynn Hughes with 10 and U.S. District Judge Melinda Harmon with 16.
Hughes had 26 motions pending for more than six months and Harmon had six. Neither of the Houston judges returned a telephone call seeking comment.
For years, Harmon has been chipping away at the multidistrict litigation filed by stockholders against corporate officers of Houston’s failed Enron Corp.
In the Eastern District, no jurist had 10 or more civil cases pending longer than three years, and only one judge had 10 or more motions pending on his docket for more than six months: U.S. District Judge T. John Ward of Marshall with 11. Ward retired from the bench on Sept. 30, 2011, to join his son in private practice as a partner in Longview’s Ward & Smith.
Ward says he worked hard up until his last day on the bench to resolve every motion possible. He presided over one of the nation’s busiest patent dockets and doesn’t remember what those motions concerned.
“We were ruling on things right up until the very end,” Ward says. “We were busy. We were doing criminal motions up until the last day. We were just doing everything we could.”
No Northern District or Western District of Texas judge had 10 or more civil cases pending longer than three years or 10 motions pending for more than six months.
Northern District Chief Judge Sidney Fitzwater says a couple of factors play into his colleagues’ up-to-date dockets. “It’s a combination of having a full complement of judges and we don’t have the criminal dockets that burden the Southern and Western Districts,” Fitzwater says. The lack of judicial vacancies impacts how fast judges can move cases as a group, he says.
Western District Chief Judge Fred Biery says that while the district has two judicial vacancies — one in El Paso, which has a heavy criminal and immigration docket because of the proximity to the border, and another in San Antonio, which has a heavy complement of civil suits — the judges have kept current by getting help from colleagues.
“A huge number of those cases in the border divisions move quickly and don’t lend themselves to be on that list,” Biery says of the Slowpoke Report. “And, No. 2, we get wonderful help from our magistrate judges to keep that motion practice moving. We couldn’t do it without the magistrate judges.”