This is a good article. Click here for more information.

Circuit split

From Wikipedia, the free encyclopedia
Jump to: navigation, search

In United States federal courts, a circuit split occurs when two or more different circuit courts of appeals provide conflicting rulings on the same legal issue.[1] The existence of a circuit split is one of the factors that the Supreme Court of the United States considers when deciding whether to grant review of a case.[2] Some scholars suggest that the Supreme Court is more likely to grant review of a case to resolve a circuit split than for any other reason.[3]

Despite the Supreme Court's desire to resolve conflicts between circuit courts, legal scholars disagree about whether circuit splits are detrimental or beneficial. Some argue that circuit splits are harmful because they create confusion and encourage forum shopping, while other scholars argue that variation among circuits allows local courts to experiment with new laws that reflect the values of local residents.[4] Scholars have also observed that regional variations in different areas of the United States have provided certain circuits with a particular specialization or expertise in some subjects of the law.[5]

Origins[edit]

Article III of the United States Constitution specifies that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."[6] In 1789, Congress created the first system of intermediate appellate courts, known as federal circuit courts, which had appellate jurisdiction over certain matters decided by District Courts.[7] These federal circuit courts consisted of two justices from the Supreme Court of the United States and one district court judge.[8] In 1891, Congress created the existing system of United States courts of appeals, which hear appeals from United States district courts within limited geographic areas.[9] For example, the United States Court of Appeals for the Fifth Circuit hears appeals originating from United States district courts in Louisiana, Mississippi, and Texas. Decisions in circuit courts are usually made by rotating three-judge panels chosen from judges sitting within that circuit, and circuit courts also occasionally decide cases en banc.[10]

Circuit courts do not collaborate or work with other circuits to resolve legal issues, and different circuit courts may reach conflicting conclusions about the same legal issue.[11] Furthermore, cases decided in one circuit are not binding authority on other circuits.[12] If the Supreme Court of the United States has not ruled on a legal issue, federal courts of appeals resolve these issues "as they see fit, subject only to a norm of intracircuit stare decisis."[13] When a circuit split occurs, there is rarely an even numeric division among courts of appeals with regard to how the dispute should be resolved.[14] In fact, one study found that courts of appeals split evenly in less than one third of all circuit splits.[14] Occasionally, separate courts of appeals will reach three or more different conclusions with regard to the same legal issue.[15]

Significance[edit]

Some scholars criticize the existence of circuit splits,[16] while other scholars suggest that circuit splits may, in fact, be beneficial.[17] Others simply argue that circuit splits may not be ideal, but problems associated with inter-circuit conflicts are overstated.[18] For example, Fourth Circuit Court of Appeals Judge Harvie Wilkinson once stated the "world will not end because a few circuit splits are left unresolved."[19]

Criticisms of circuit splits[edit]

Legal analysts have identified problems associated with circuit splits.[20] Jesse M. Boodoo, for example, suggests that circuit splits create a state of confusion and uncertainty for citizens.[21] Because different laws are applied and enforced in different jurisdictions, Daniel J. Meador has argued that Circuit splits may create a judicial "Tower of Babel."[22] Additionally, Wayne A. Logan has argued that if courts speak with a unified voice, this will "secure popular respect for judicial authority."[23] Likewise, Matthew Lund cautions that circuit splits will lead to forum shopping, where litigants flock to jurisdictions with more favorable laws.[24] Judge Kimberly A. Moore also suggests that circuit splits and forum shopping lead to economic inefficiency because outcomes are unpredictable and litigants are less likely to settle.[25]

Scholars have also argued that inconsistent application of laws in different circuits is inherently unfair.[26] Trevor W. Morrison, for example, claims that circuit splits create potential due process conflicts if criminal defendants are unaware that their behavior constitutes criminal activity in that circuit.[27] An article in the New England Journal on Criminal & Civil Confinement also suggested that there is the potential for the unconstitutional ex post facto application of law after circuit splits are resolved.[28] Additionally, Jesse M. Boodoo argues that federal agencies tasked with enforcing laws throughout the United States may face challenges implementing regulatory measures when federal legislation is interpreted differently in separate circuits.[29]

Arguments in favor of circuit splits[edit]

Legal scholars have also identified benefits associated with circuit splits.[30] For example, Justice Louis Brandeis praised the fact that splits of opinion among courts allow jurisdictions to experiment with new developments in law without risking harm to other jurisdictions.[31] Judge Diane P. Wood has suggested that circuit splits and "disagreements with colleagues force judges to sharpen their writing, push them to defend their positions, and from time to time persuade them that someone else's perspective is preferable".[32] Amanda Frost has argued that negative attitudes toward circuit splits may hinder progress and creative problem solving because "[c]ourts of appeals are generally hesitant to depart from precedent set in other jurisdictions, despite being under no obligation to adhere to decisions by sister circuits."[33] Consequently, Frost suggests that uniformity among circuits may be "overvalued."[17] Likewise, Wayne A. Logan suggests that Circuit splits may also be beneficial by virtue of the fact that citizens in different parts of the country have different preferences for how to structure their laws.[34] Additionally, Judge J. Clifford Wallace has argued that there is nothing inherently wrong with different laws existing in different circuits,[35] and "if conflicts were by their very nature unacceptable, the traditional rule denying precedential status to out-of-circuit decisions probably would not have enjoyed its long history." [36]

Resolving circuit splits at the Supreme Court of the United States[edit]

"[T]he ultimate guiding rule, should be announced by the Supreme Court, so that there may be uniformity of decision in the several circuits courts of appeal, and also uniformity of decision in the State Courts insofar as federal matters are concerned."

—Associate Supreme Court Justice Willis Van Devanter testifying before the United States Senate Committee on the Judiciary in 1924[37]

One of the primary functions of the Supreme Court of the United States is to ensure that laws are interpreted uniformly among intermediate courts of appeal.[38] Unless the legislature takes action, the United States Supreme Court is the only source of resolution for conflicts among intermediate courts of appeal.[39] Consequently, the existence of a circuit split may be a key factor when the Supreme Court decides whether to accept a case.[40] Although the Court always maintains discretion over whether it should grant review of a case, the Rules of the Supreme Court of the United States specifically state that the existence of a circuit split is one of the factors the Court considers when deciding whether to grant review.[2] Philip Allen Lacovara and H.W. Perry both claim that the existence of a circuit split is "the single most important generalizable factor" that determines whether the Supreme Court will grant review of a case.[41]

Although federal judges are prohibited from commenting publicly "on the merits of a matter pending or impending in any court",[42] Judge Alfred T. Goodwin has stated that circuit court judges will occasionally create circuit splits to "hold the Supreme Court's toes to the fire" and force the Supreme Court to overrule precedent in other circuits.[43] Goodwin also wrote that "some of our number actually found it intellectually stimulating to challenge the Supreme Court from time to time" but that those judges were "usually were rewarded by a Nine Zip reversal".[44] Likewise, Judge Charles R. Wilson noted that when he drafted dissenting opinions, he would consider whether the parties planned to appeal the case to the Supreme Court of the United States, and "[i]f I believe that the parties will [file an appeal], I write the dissent with the Supreme Court in mind".[45] C. Steven Bradford has also argued that circuit courts will "disregard a Supreme Court precedent if convinced that the Supreme Court would not follow it".[46]

A study of Supreme Court cases during the first six terms of the Roberts Court (2005-2010) resolving circuit splits found that the Supreme Court upheld the view held by the majority of circuits in 51.5 percent of all cases.[47] This same study found the greatest agreement when deciding legal issues between the Fifth and Tenth circuits (80.6 percent), the First and Second circuits (73.5 percent), and the Fifth and Fourth circuits (73.0 percent).[48] The circuit courts that agreed the least frequently were the Ninth and Fourth circuits (39.0 percent) and the Ninth and Seventh circuits (39.2 percent).[48] Additionally, a study analyzing cases from the 2010 term found that nearly two thirds of Supreme Court decisions resolving circuit splits were decided unanimously or by an 8-1 vote.[14] Historically, the Supreme Court has reversed a high percentage of cases from the Ninth Circuit.[49] In the 1996-1997 term, the Supreme Court reversed twenty seven out of twenty eight cases on review from the Ninth Circuit.[49] Marybeth Herald attributes this high reversal rate to the Ninth Circuit's liberal reputation,[49] and former United States senator Conrad Burns claims the Ninth Circuit is "out of step" with the rest of the nation.[50]

Specialization among circuit courts of appeals[edit]

The eleven numbered circuit courts of appeals and the District of Columbia Circuit have appellate jurisdiction over cases in almost every area of the law[51] arising within the boundaries of that circuit.[52] However, the subjects that appear more frequently in each circuit vary according to the kinds of cases that arise more often within the circuit's boundaries.[5] The District of Columbia Circuit, for example, hears a large number of administrative law cases.[53] Likewise, the Second Circuit hears nearly one third of all federal securities law appeals, and the Fifth Circuit hears approximately one half of all federal immigration appeals.[54] Eric Hansford argues that this has led to "specialized" courts with particular expertise with the subjects that appear before the court more frequently.[5] Studies also suggest that the Supreme Court is more likely to affirm decisions of circuit courts when the circuit court has ruled on a case for which they possess special expertise.[55]

In some specialized areas of the law, cases are assigned to a court of appeals that possesses expertise in that area of the law.[56] For example, Congress created the Court of Appeals for the Federal Circuit as an exclusive federal court of appeals for patent cases.[57] Congress noted that consolidating cases in a single court of appeals would "strengthen the United States patent system in such a way as to foster technological growth and industrial innovation."[58] Because of its role as a specialist court, circuit splits rarely exist between the Federal Circuit and other circuit courts of appeal.[59] In his opinion in Markman v. Westview Instruments, Inc., Justice David Souter observed that avoiding conflicting rulings among circuit courts in patent law cases benefits the economy by providing legal certainty to businesses.[60]

Examples of existing circuit splits[edit]

The following are examples of existing splits of authority between different circuit courts of appeals:[61]

  • The Sixth Circuit and the Tenth Circuit disagree with regard to whether police may seize an individual, without a warrant, based solely on the officers' reasonable suspicion that the individual being seized committed a misdemeanor.[62]
  • The Third Circuit, Fifth Circuit, and Ninth Circuit disagree with regard to whether the "special needs" exception permits warrantless strip searches of juveniles.[63]
  • The Fifth Circuit and the Eleventh Circuit disagree with regard to whether prisoners have a reasonable expectation of privacy for correspondence with their attorney.[64]
  • The First Circuit and the Fifth Circuit disagree with regard to the appellate standard of review for a trial court's determination of the scope of defendant's consent to search.[65]

See also[edit]

References[edit]

  1. ^ Sup. Ct. R. 10(a) (2013); see also Tom Cummins & Adam Aft, Appellate Review, 2 J.L.: Periodical Laboratory of Leg. Scholarship 59, 60 (2012) (discussing definition of the term "circuit split").
  2. ^ a b Sup. Ct. R. 10(a) (2013).
  3. ^ Philip Allen Lacovara, Federal Appellate Practice 647 (2008) (internal quotation marks omitted).
  4. ^ Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 Calif. L. Rev. 913 (1983) (assessing arguments on both sides of the debate).
  5. ^ a b c See, e.g., Eric Hansford, Measuring the Effects of Specialization with Circuit Split Resolutions, 63 Stan. L. Rev. 1145, 1150 (2011).
  6. ^ U.S. Const. art. III, § 1.
  7. ^ Daniel John Meador & Jordana Simone Bernstein, Appellate Courts in the United States 7 (1994); Ruth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts, 82 U. Cin. L. Rev. 831, 836 (2014) (discussing history of federal circuit courts).
  8. ^ Ruth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts, 82 U. Cin. L. Rev. 831, 836 (2014).
  9. ^ Daniel John Meador & Jordana Simone Bernstein, Appellate Courts in the United States 7 (1994).
  10. ^ Arthur D. Hellman, "The Law of the Circuit" Revisited: What Role for Majority Rule?, 32 S. Ill. U. L.J. 625 (2008); see also Fed. R. App. P. 35(a).
  11. ^ Arthur March Brown, Comity in the Fed. Courts, 28 Harv. L. Rev. 589, 590 (1915) ("Each District Court is independent of every other District Court, each Circuit Court of Appeals of every other Circuit Court of Appeals.").
  12. ^ Chad Flanders, Toward a Theory of Persuasive Authority, 62 Okla. L. Rev. 55, 77 (2009) ("[T]he fact that a court in a different circuit has ruled one way does not mean that all the circuits have to rule that way; indeed, even if every other court has ruled one way, this does not mandate the outcome for the remaining circuit.").
  13. ^ Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment, 65 Vand. L. Rev. 1137, 1139 (2012).
  14. ^ a b c Tom Cummins & Adam Aft, Appellate Review, 2 J.L.: Periodical Laboratory of Leg. Scholarship 59 (2012).
  15. ^ See, e.g., Deborah J. Buswell, Foreign Trade Antitrust Improvements Act: A Three Ring Circus — Three Circuits, Three Interpretations, 28 Del. J. Corp. L. 979 (2003).
  16. ^ See, e.g., Trevor W. Morrison, Fair Warning & the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L. Rev. 455 (2001).
  17. ^ a b See, e.g., Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1571 (2008).
  18. ^ See, e.g., J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 Calif. L. Rev. 913, 923, 929 (1983).
  19. ^ J. Harvie Wilkinson III, If It Ain't Broke . . ., 119 Yale L.J. Online 67, 69 (2010).
  20. ^ Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits & the Fourth Amendment, 65 Vand. L. Rev. 1137, 1147-48 (2012) (noting that researchers have identified "unique problems they present").
  21. ^ Jesse M. Boodoo, Compounding Problems & Compounding Confusion: Federal Regulation of Compounded Drug Products & the FDAMA Circuit Split, 36 Am. J.L. & Med. 220, 243 (2010) ("The split between the Fifth and Ninth Circuits on the severability of the FDAMA creates a confusing state of affairs.").
  22. ^ Daniel J. Meador, A Challenge to the Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeal, 56 U. Chi. L. Rev. 603, 640 (1989).
  23. ^ Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits & the Fourth Amendment, 65 Vand. L. Rev. 1137, 1173 (2012).
  24. ^ See, e.g., Matthew Lund, Rockwell International, Pondcrete, and an A La Carte Three-Step Test for Determining an "Original Source" in Qui Tam Lawsuits, 2008 B.Y.U. L. Rev. 1243, 1244 (2008).
  25. ^ See, e.g., Kimberly A. Moore, Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation?, 79 N.C. L. Rev. 889, 893-94 (2001).
  26. ^ See, e.g., Kiran H. Griffith, Fugitives in Immigration: A Call for Legislative Guidelines on Disentitlement, 36 Seattle U.L. Rev. 209, 243 (2012) (arguing that it is "intolerable" for one result to be reached "in one circuit and the opposite result in another").
  27. ^ Trevor W. Morrison, Fair Warning & the Retroactive Judicial Expansion of Federal Criminal Statutes, 74 S. Cal. L. Rev. 455 (2001) (discussing due process implications of circuit splits in federal criminal law).
  28. ^ Retrospective Application of State Firearm Prohibitions Triggering Enhanced Sentencing Under Federal Law: A Violation of the Ex Post Facto Clause? The Circuits Split, 27 New Eng. J. on Crim. & Civ. Confinement 307, 323 (2001) (discussing ex post facto application of law).
  29. ^ Jesse M. Boodoo, Compounding Problems & Compounding Confusion: Federal Regulation of Compounded Drug Products & the FDAMA Circuit Split, 36 Am. J.L. & Med. 220 (2010) (discussing challenges with FDA's initial assertion of regulatory jurisdiction over compounded drugs in light of existing circuit split).
  30. ^ See, e.g., Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1578 (2008); J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 Calif. L. Rev. 913, 923, 929 (1983).
  31. ^ See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
  32. ^ Diane P. Wood, Is It Time to Abolish the Federal Circuit's Exclusive Jurisdiction in Patent Cases?, 13 Chi.-Kent J. of Intell. Prop. L. 1, 5-6 (2013).
  33. ^ Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1578 (2008) (arguing that "nonuniformity has too often been given priority at the expense of other values").
  34. ^ Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits & the Fourth Amendment, 65 Vand. L. Rev. 1137, 1161-62 (2012).
  35. ^ J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 Calif. L. Rev. 913, 923, 929 (1983) (noting that it is "not clear that there is anything intrinsically unacceptable about conflicts").
  36. ^ J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 Calif. L. Rev. 913, 929 (1983).
  37. ^ Testimony of Justice Van Devanter, Hearings before Subcomm. of Sen. Comm. on Judiciary, 68th Cong., 1st Sess., at 29-30 (1924).
  38. ^ Testimony of Justice Van Devanter, Hearings before Subcomm. of Sen. Comm. on Judiciary, 68th Cong., 1st Sess., at 29-30 (1924); see also Wright v. North Carolina, 415 U.S. 936, cert. den. (Douglas, J., dissenting).
  39. ^ Wright v. North Carolina, 415 U.S. 936, cert. den. (Douglas, J., dissenting) ("We are, of course, the only source of resolution for this conflict and it is our obligation to provide uniformity on such important federal constitutional questions.").
  40. ^ H.W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court, Harvard University Press 251 (1991); see also Moskal v. United States, 498 U.S. 103, 106 (1990) ("[W]e granted certiorari to resolve a divergence of opinion among the Courts of Appeals.").
  41. ^ Quoting Philip Allen Lacovara, Federal Appellate Practice 647 (2008) (internal quotation marks omitted); see also H.W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court, Harvard University Press 246 (1991); Ryan Stephenson, Federal Circuit Case Selection at the Supreme Court: An Empirical Analysis 102 Geo. L.J. 271, 274 (2013) (discussing Perry's findings).
  42. ^ Code of Conduct for United States Judges, Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently.
  43. ^ Stephen L. Wasby, Intercircuit Conflicts in the Courts of Appeals, 63 Mont. L. Rev. 119, 140 (2002) (internal citations and quotations omitted) (noting that Goodwin "always took the view that we should not hesitate to create splits if we thoughtfully and carefully concluded that [another] Circuit was wrong").
  44. ^ Stephen L. Wasby, Intercircuit Conflicts in the Courts of Appeals, 63 Mont. L. Rev. 119, 140 n.53 (2002) (internal citations and quotations omitted).
  45. ^ Charles R. Wilson, How Opinions Are Developed in the United States Court of Appeals for the Eleventh Circuit, 32 Stetson L. Rev. 247, 266 n.102 (2003).
  46. ^ C. Steven Bradford, Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling, 59 Fordham L. Rev. 39, 43 (1990).
  47. ^ John S. Summers & Michael J. Newman, Towards a Better Measure and Understanding of U.S. Supreme Court Review of Courts of Appeals Decisions, 80 U.S.L.W. 393 (2011); cf. Tom Cummins & Adam Aft, Appellate Review, 2 J.L.: Periodical Laboratory of Leg. Scholarship 59 (2012) (finding agreement with majority of circuits in ninety percent of cases).
  48. ^ a b John S. Summers & Michael J. Newman, Towards a Better Measure and Understanding of U.S. Supreme Court Review of Courts of Appeals Decisions, 80 U.S.L.W. 393 (2011).
  49. ^ a b c Marybeth Herald, Reversed, Vacated, & Split: The Supreme Court, the Ninth Circuit, & the Congress, 77 Or. L. Rev. 405 (1998).
  50. ^ See Conrad Burns, Why the Ninth Circuit Should Be Split In Two, Legal Times, Aug. 4, 1997, at 26.
  51. ^ Ruth Bader Ginsburg, An Overview of Court Review for Constitutionality in the United States, 57 La. L. Rev. 1019, 1021 (1997) ("With some notable exceptions . . . federal courts are not specialized tribunals; typically, they are generalist courts, and none of their members sit, as continental judges do, in sections divided by subject matter.").
  52. ^ See 28 U.S.C. §§ 1291, 1294 (2006).
  53. ^ John G. Roberts, Jr., What Makes the D.C. Circuit Different? A Historical View, 92 Va. L. Rev. 375 (2006).
  54. ^ Eric Hansford, Measuring the Effects of Specialization with Circuit Split Resolutions, 63 Stan. L. Rev. 1145, 1150 (2011) (noting that these totals are slightly misleading, because they do not account for discrepancies between the geographic size of the circuit courts).
  55. ^ Eric Hansford, Measuring the Effects of Specialization with Circuit Split Resolutions, 63 Stan. L. Rev. 1145, 1167 (2011) (concluding that "partial specialization improves judicial performance").
  56. ^ See, e.g. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (discussing formation of the Court of Appeals for the Federal Circuit).
  57. ^ H.R.Rep. No. 97–312, pp. 20–23 (1981).
  58. ^ H.R.Rep. No. 97–312, p. 20 (1981).
  59. ^ Eric Hansford, Measuring the Effects of Specialization with Circuit Split Resolutions, 63 Stan. L. Rev. 1145, 1150 (2011) ("[t]he Federal Circuit rarely opposes other circuits in circuit splits").
  60. ^ See, e.g. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (discussing economic consequences of creating the Federal Circuit as a specialized tribunal).
  61. ^ See Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits & the Fourth Amendment, 65 Vand. L. Rev. 1137, 1195 (2012).
  62. ^ Compare United States v. Moran, 503 F.3d 1135 (10th Cir. 2007) with Gaddis v. Redford, 364 F.3d 763 (6th Cir. 2007)), cert. denied, 553 U.S. 1035 (2008).
  63. ^ Compare Doe v. Tex. Dep't of Prot. & Regulatory Servs., 299 F.3d 395, 407-08 (5th Cir. 2002) with Landstron v. Ill. Dep't of Children & Family Servs., 892 F.2d 670, 676 (9th Cir. 1990) (noting disagreement with Good v. Dauphin Cnty. Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)).
  64. ^ Compare Al-Amin v. Smith, 511 F.3d 1317 (11th Cir.), cert. denied, 555 U.S. 820 (2008) with Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994).
  65. ^ Compare United States v. Melendez, 301 F.3d 27, 32 (1st Cir. 2002) with United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996).