Judicial Omnipotence overtakes the Judicial Oath at the Fifth Circuit
“Congress created FHFA amid a dire financial calamity, but expedience does not license omnipotence.”
Collins v. Mnuchin, No. 17-20364, at *3-4 (5th Cir. Sep. 6, 2019)
Judge Catharina Jacoba Hendrika Dubbelday* Haynes is sitting on cases and authoring opinions where she should have recused herself.
If we look first at the 6-year case over a broken chain, namely; Petrobras Am. Inc. v. Cadenas, No. 18-20532 (5th Cir. Jun. 18, 2019) case, which included Judge Graves and Judge Ho.
“The Judge’s Relative is Affiliated with Counsel of Record: The Ethical Dilemma,” by Leslie W. Abramson confirms, as her husband is a PARTNER at her ex-law firm and where they represent parties which come before the Court of Appeals for the Fifth Circuit, this demands recusal of Judge Haynes, no “ifs-and-or-buts”.
Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
“Under 28 U.S.C. § 455, a judge “shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned” and also where her spouse “[i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” 28 U.S.C. § 455(a) & (b)(5)(iii).
The issue of recusal can affect rulings issued by the judge.See Patterson v. Mobil Oil Corp., 335 F.3d 476, 485 (5th Cir. 2003) (explaining circumstances under which reversal or vacation of orders entered by judge who should have recused is appropriate).”
Garcia v. City of Laredo, No. 14-40994, at *2 (5th Cir. 2015)
At LIT, we were drawn to the Petrobras case as it cited Burkes’ Deutsche II case before the circuit, and where Judge Haynes sat on both Deutsche I and Deutsche II, reversing the lower courts’ judgment in their favor, twice. The order(s) of the Fifth Circuit in the Burkes’ case were erroneous.
It has been well documented on LIT and needs no further detailed discussion here, except to say the lower court case was assigned to (former) Magistrate Judge Stephen Wm. Smith by Snr. US District Judge David Hittner in both Burke and Petrobras.
However, in this case, Hittner issued the Opinion and Judgment of Dismissal in favor of Cadenas. Haynes was obviously not amused. The judgment order from Hittner against Petrobas was dated 24 July, 2018.
The timing is relevant. The date Burkes’ counsel at Hagens Berman filed the Burkes Appellees Brief in Deutsche II was June 16th. By September 5, 2018, the Order was out and the 3-panel included Haynes.
Returning to Petrobras, it raised immediate concerns. LIT knows that Judge Haynes spouse is a partner at Thompson & Knight, LLP, Dallas and his core area of expertise is defending Oil and Gas clients. So with that information, LIT went to work investigating and this is what we’ve found. Petrobras is a client of Thompson & Knight. However, in this case, Petrobras was represented by another Houston law firm but that should not let Judge Haynes off-the-hook. After all, Thompson & Knight keep hiring executives from Petrobras!
For example, in 2007, Houston’s Renato Bertani was appointed president and chief executive officer of Thompson & Knight Global Energy Services, LLC (tkges.com). Bertani was the former president of Petrobras America Inc. and held a number of senior-level positions during his 30-year career with the Brazilian-owned energy conglomerate. Launched in 2007, Thompson & Knight Global Energy Services offers a wide range of specialized services to the industry including risk assessment and mitigation evaluations, portfolio management, asset evaluation, and analysis of exploration and production opportunities around the world.
And then after Bertani left to setup as Barra Energia, this press release came out in 2011;
“The global law firm of Thompson & Knight LLP is pleased to announce that energy industry veteran Armando Cavanha has been named president and chief executive officer of Thompson & Knight Global Energy Services, LLC. The Houston-based company, a subsidiary launched by Thompson & Knight in 2007, offers a range of specialized financial and consulting services to the energy industry.
Mr. Cavanha joins the company after 32 years of work in various positions at Petrobras, the Brazilian state-owned oil company, and its related entities. Throughout his career Mr. Cavanha has focused on procurement and supply chain matters, including most recently serving as President of Petronect, the e-procurement portal of Petrobras…”
There is absolutely no excuse why Haynes should not have been replaced with one of the many other judges on this circuit and she should have recused herself, even though Thompson & Knight were not directly on the case for the reasons stated herein. The “appearance” of impropriety is sufficient here.
And when the ruling in Petrobras reversed and remanded against Vicinay, this was undoubtedly another attack directed towards the lower court judge(s) – it’s an all too familiar fate when you’re in front of an unethical appellate panel.
*Born with last name Dubbeldam, later changed to Dubbelday…..We’ll Be dam[n]ed to-Day!
‘…Haynes worked in private practice for 12 years at the Texas law firm[s] of Thompson & Knight…’
‘Confirmation Hearings on Federal Appointments: Hearing …, Volume 4, Part 3
By United States. Congress. Senate. Committee on the Judiciary.’
Petrobras Am. Inc. v. Cadenas, No. 18-20532 (5th Cir. Jun. 18, 2019)
Before HAYNES, GRAVES, and HO, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Petrobras America, Inc. and Vicinay Cadenas, S.A. return to our court in a suit over an allegedly bad chain made by Vicinay.
The district court granted summary judgment against Petrobras because Vicinay invoked a contractual release of claims and waiver of losses.
Petrobras argued that the release and waiver were invalid under a Louisiana statute that invalidates prospective releases of claims based on “intentional or gross fault.”
The district court concluded the statute could not save Petrobras’s claims because it did not require Petrobras to prove “intentional or gross fault.” But, in this context, Louisiana courts have consistently looked at the underlying facts of a claim, not the form of the cause of action.
We thus REVERSE and REMAND.
“Though Vicinay previously argued that Petrobras’s claims were maritime claims, it did not argue that Petrobras’s tort claims occurred anywhere but at an OCSLA situs. It does not claim otherwise now nor does it offer any of the traditional arguments for supplanting law of the case. Deutsche Bank Nat’l Trust Co. v. Burke, 902 F.3d 548, 551 (5th Cir. 2018) (describing the three limited circumstances where a second panel can re-examine a prior panel’s holding).“
Petrobras Am. Inc. v. Cadenas, No. 18-20532, at *5 (5th Cir. Jun. 18, 2019)
Abramson, Leslie W. (2004) “The Judge’s Relative is Affiliated with Counsel of Record: The Ethical Dilemma,” Hofstra Law Review: Vol. 32: Iss. 4, Article 7.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss4/7
View on Law360 (subscription) and Thompson Knight Website
Petrobras Am., Inc. v. Cadenas, No. 14-20589 – REVISED (5th Cir. Jul. 28, 2016)
Appeal from the United States District Court for the Southern District of Texas Opinion on Rehearing Before JOLLY, JONES, and BENAVIDES, Circuit Judges. PER CURIAM:
The panel hereby clarifies its previous opinion, Petrobras Am., Inc. v. Vicinay Cadenas, 815 F.3d 211 (5th Cir. 2016), as follows.
Petrobras Am., Inc. v. Cadenas, 14-20589 – (815 F.3d 211) (5th Cir., July 3, 2016)
Opinion
EDITH H. JONES, Circuit Judge:
Certain Underwriters At Lloyd’s London & Insurance Companies v. Vicinay Cadenas, S.A., No. 14-20780 (5th Cir. 2015)
Before CLEMENT, OWEN and HIGGINSON, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
ETHICAL INTRICACIES OF THE ATTORNEY/JUDGE RELATIONSHIP: WHAT’S O.K. AND WHAT’S NOT* (2003)
*This is a restructured and modified version of a paper distributed on May 2, 2003 at the Dallas Bar Association CLE program on “The Ethics of Lawyer-Judge Interactions” presented by The Honorable Catharina Haynes, The Honorable Karen Johnson, The Honorable Jeff Kaplan, and James L. Mitchell, Jr., Esq.
Update; 28th Dec., 2019
After release of this article, links, documents and resumes to former Petrobras executive hires by Mr and Mrs Petrobras law firm, Thompson & Knight, LLP conveniently were removed. Here’s the replacements, we hate to lose such valuable content for our subscribers and visitors to LIT.
Thompson & Knight Global Energy Services, LLC
Armando Oscar Cavanha Filho
President and CEO
Thompson & Knight Global Energy Services, LLC
Tel +1.713.653.8888
Fax +1.832.397.8012
Armando.Cavanha@tkges.com
Armando Cavanha became President and CEO of Thompson & Knight Global Energy Services, LLC, a subsidiary of Thompson & Knight LLP, in January 2011. His role is dedicated to rendering procurement and supply chain management services to the energy industry, including assistance with procurement strategies, partner selection for supply chain management, local content rules, and e-procurement and electronic portals.
Mr. Cavanha previously served for 32 years in various positions with Petrobras, the Brazilian state-owned oil company, and Petrobras subsidiaries.
Throughout his career he has focused on procurement and supply chain matters, including most recently serving as President of Petronect, Petrobras’ e-procurement portal, from 2008-2010; Procurement Department Manager of Petrobras America,Inc. from 2006-2008; and Executive Manager of Materials – Corporate Procurement for Petrobras from 2003-2006.
Mr. Cavanha is a frequent speaker on procurement and supply chain-related topics and has published four books and numerous articles on the subject. He has earned numerous professional and academic degrees in the engineering field, and has developed several patented software programs.
Additionally, Mr. Cavanha has served as a professor and guest lecturer at universities around the globe,including as a Professor in the Logistics MBA Program at Fundação Getulio Vargas in Rio de Janeiro from 2001-2009.
Education
• Master’s Degree in Production Engineering, Universidade Federal de Santa Catarina, Brazil, 2000
• Professional Degree in Safety Engineering, Universidade Federal do Rio de Janeiro, Brazil, 1982
• Professional Degree in Oil & Gas Pipelines Engineering, Petrobras, Brazil, 1978
• University Degree in Mechanical Engineering, Universidade Federal do Paraná, Brazil, 1977
Recent Publications/Representations
• “Negotiation Basics,” Amazon.com, 2009
• “Userchain – End User Logistics,” used for University of Nevada Supply Chain Management classes, Amazon.com, 2008
• “Logistics Strategies – Topics for Discussion,” Amazon.com, 2007
• “Essays in Management – 10 Paradoxes for Reflection,” Amazon.com and Ciencia Moderna, 2006
Recent Work Experience
• August 2008 – December 2010
President of Petronect (Petrobras e-Procurement Portal), Brazil
• April 2006 – June 2008
Procurement Department Manager of Petrobras America, Inc., Houston, Texas
• February 2003 – March 2006
Executive Manager of Materials – Corporate Procurement of Petrobras, Brazil
President of the Board of Procurement Negócios Electronicos (Petrobras subsidiary), Brazil
Director of e-Petro
Petrobras Representative on the ONIP Board (Organizacao Nacional da Industria do Petroleo)
Thompson & Knight Global Energy Services, LLC, 333 Clay Street, Suite 3300, Houston, Texas
• February 2003 – March 2006
Executive Manager of Materials – Corporate Procurement of Petrobras, Brazil
President of the Board of Procurement Negócios Electronicos (Petrobras subsidiary), Brazil
Director of e-Petro
Petrobras Representative on the ONIP Board (Organizacao Nacional da Industria do Petroleo)
T&K Attorney Selected to Join The Patrick E. Higginbotham Inn of Court
DALLAS, Texas (September 27, 2018) – The law firm of Thompson & Knight LLP is pleased to announce The Patrick E. Higginbotham American Inn of Court has selected Craig A. Haynes to serve as a Master of the Inn. Mr. Haynes previously served as a member of the Higginbotham Inn of Court from 1993-1997.
Mr. Haynes is a Trial Partner in the Firm’s Dallas office. He focuses his practice on complex commercial litigation with an emphasis on energy litigation; he represents major oil companies, large and small independents, gas plant owners, and other oil and gas interest owners in royalty owner litigation, class action litigation, pricing disputes, take-or-pay issues, operational issues, development and drainage claims, pooling and unitization issues, litigation of administrative disputes, disputes between working interest owners, and litigation involving issues arising in the shale plays. He also handles a broad range of non-energy related complex commercial litigation in state and federal courts throughout Texas. Mr. Haynes is a Life Fellow of the Texas Bar Foundation and a member of the Texas and Dallas Bar Associations. He is a past chair of the Dallas Bar Association’s Business Litigation Section and its Judiciary Committee, and he currently serves on the Dallas Theater Center’s Board of Trustees.
The American Inns of Court is an association of lawyers, judges, and other legal professionals from all levels and backgrounds who share a passion for professional excellence. Through regular meetings, members are able to build and strengthen professional relationships; discuss fundamental concerns about professionalism and pressing legal issues of the day; share experiences and advice; exhort the utmost passion and dedication for the law; provide mentoring opportunities; and advance the highest levels of integrity, ethics, and civility. For more information, visit http://home.innsofcourt.org/.
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