IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

WICHITA FALLS DIVISION 

CORNELIUS CAMPBELL BURGESS, 

 Plaintiff, 

 v. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION; MARTIN J. 

GRUENBERG, in his official capacity as 

Acting Chairman of the FDIC; MICHAEL J. 

HSU, in his official capacity as a Director 

of the FDIC; ROHIT CHOPRA, in his 

official capacity as a Director of the FDIC; 

and JENNIFER WHANG, in her official 

capacity as an Administrative Law Judge, 

 Defendants. 

Civil Action No. 7:22-cv-00100-O 

The Honorable Reed O’Connor, 

United States District Judge, Presiding 

REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR RECONSIDERATION 

Michael A. Heidler (TX Bar No. 24059921) 

 Email: mheidler@velaw.com 

VINSON & ELKINS LLP 

200 West 6th Street, Suite 2500 

Austin, Texas 78701 

Telephone: (512) 542-8579 

James T. Dawson (TX Bar No. 24094618) 

 Pro Hac Vice (DC Bar No. 1602502) 

 Email: jamesdawson@velaw.com 

VINSON & ELKINS LLP 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

Telephone: (202) 639-6588

Manuel G. Berrelez (TX Bar No. 24057760) 

 Email: mberrelez@velaw.com 

Thomas P. Mitsch (TX Bar No. No. 24102218) 

 Email: tmitsch@velaw.com 

James F. Hopper (TX Bar No. 24116535) 

 Email: jhopper@velaw.com 

Madelyn C. Stanley (TX Bar No. 24121529) 

 Email: mstanley@velaw.com 

VINSON & ELKINS LLP 

Trammell Crow Center

2001 Ross Avenue, Suite 3900

Dallas, Texas 75201

Telephone: (214) 220-7700 

Facsimile: (214) 220-7716 

Counsel for Plaintiff Cornelius Campbell Burgess

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INTRODUCTION 

The government’s position in this case is that, even when everyone agrees that an officer 

of the United States has been unconstitutionally shielded from removal, that officer should 

nonetheless be permitted to exert executive power over American citizens for the rest of time, 

unless and until the President publicly states that he would remove that officer if a statute or 

judicial decision did not stand in the way. Of course, no one has ever made such a showing. And, 

barring truly exceptional circumstances, no one ever will. That is why the Fifth Circuit has gone 

out of its way to clarify that plaintiffs who are seeking only prospective relief are not required to 

meet this exacting standard in order to succeed on a separation-of-powers claim. Cochran v. SEC, 

20 F.4th 194, 210 n.16 (5th Cir. 2021) (en banc), cert. granted, 142 S. Ct. 2707 (2022). Were it 

otherwise, there would be no way for courts to enforce the Supreme Court’s instruction that 

plaintiffs must be permitted to seek “relief sufficient to ensure that the . . . standards to which they 

are subject will be enforced only by a constitutional agency accountable to the Executive.” Free 

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 513 (2010); accord Cochran, 20 

F.4th at 233 (Oldham, J., concurring) (“A person subject to an unconstitutional adjudication should 

at least be able to sue for declaratory relief requiring a constitutionally structured proceeding.”). 

Unsurprisingly, the government’s opposition to Burgess’s Reconsideration Motion (ECF 

No. 54, “Mot.”) has little to say about the enormous practical consequences of its position, which, 

if credited, would prevent the targets of administrative enforcement proceedings from ever having 

a meaningful opportunity to challenge the constitutionality of their persecutors. Instead, the 

government has again elected to hide behind misguided procedural objections and contorted 

readings of Fifth Circuit cases that, by its own admission, did not consider the arguments Burgess 

makes here. 

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The government’s lead argument is that this Court cannot act on Burgess’s Reconsideration 

Motion because the pending appeal has stripped this Court of jurisdiction. See ECF No. 66 

(“Opposition” or “Opp.”) at 3-5. But, as Burgess’s counsel explained to the government before 

the Opposition was filed, this Court can still issue an indicative ruling on the Reconsideration 

Motion under Federal Rule of Civil Procedure 62.1(a). See infra Section I. 

On the merits, the government insists that this case is controlled by Community Financial 

Services Ass’n of America, Ltd. v. CFPB, 51 F.4th 616 (5th Cir. 2022). But the government offers 

no real response to Burgess’s contention that this Court should not have followed Community 

Financial in its preliminary-injunction Order given that Community Financial—to the extent it 

applies here at all—conflicts with the Fifth Circuit’s decision in Cochran. See infra Section II. 

ARGUMENT IN REPLY 

I. This Court Retains Jurisdiction To Issue an Indicative Ruling Under Rule 62.1(a). 

The government’s Opposition opens with the contention that this Court purportedly “lacks 

jurisdiction” to consider Burgess’s Reconsideration Motion because “there is no aspect of the 

November 6 Order and December 1 Injunction that is not before the Fifth Circuit.” Opp. 1, 4 

(emphases omitted). The government then discloses that it “requested that Burgess’ counsel 

withdraw his motion” due to this alleged jurisdictional defect and that “Burgess declined to do so.” 

Id. at 4. But that tells only half the story. In response to the inquiry from the government’s counsel, 

Burgess’s counsel promptly explained that “Judge O’Connor retains the option to resolve 

[Burgess’s] pending reconsideration motion by . . . provid[ing] an ‘indicative ruling”’ under 

Federal Rule of Civil Procedure 62.1(a). Ex. A at 1. The government’s counsel did not respond 

to that email, and the government’s Opposition does not mention Rule 62.1(a) even once. 

Federal Rule of Civil Procedure 62.1(a) provides that, “[i]f a timely motion is made for 

relief that the court lacks authority to grant because of an appeal that has been docketed and is 

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pending, the court may” issue an order that “state[s] either that it would grant the motion if the 

court of appeals remands for that purpose or that the motion raises a substantial issue.” If this 

Court were to issue an “indicative ruling” of that type, Burgess would then be required to 

“promptly notify the [Fifth Circuit] clerk under Federal Rule of Appellate Procedure 12.1.” Fed. 

R. Civ. P. 62.1(b). After receiving such notice, the Fifth Circuit could elect to remand the pending 

appeal to this Court in lieu of deciding it on the merits. And this Court could “decide the 

[reconsideration] motion if the court of appeals remands for that purpose.” Fed. R. Civ. P. 62.1(c). 

The government’s argument that the pendency of the Reconsideration Motion risks wasting 

“time and resources” has things exactly backwards. Opp. 4. Rule 62.1(a) was designed to account 

for the fact that, when there are “compelling grounds to grant relief” from an already-issued order 

that has since been appealed, it is often the case that “the most sensible and efficient path forward” 

is for the district court to issue an indicative ruling, ergo providing the court of appeals with the 

option to “to terminate its proceedings and remand the case to the district court for further action.” 

Steven S. Gensler & Lumen N. Mulligan, 2 Federal Rules of Civil Procedure, Rules and 

Commentary Rule 62.1 (Westlaw Feb. 2022). When a district court “would grant the motion if it 

could, it generally will be preferable for the district court to say so,” because then the court of 

appeals does not have to waste time and resources considering an appeal from an order that the 

district court believes should be revisited. Id.; see Wright & Miller, 11 Fed. Prac & Proc. Civ. § 

2911 (3d ed. Westlaw Apr. 2022). That is especially so here, given that the Reconsideration 

Motion in this Court is already fully briefed and no merits briefs have yet been filed in the Fifth 

Circuit. Thus, contrary to the government’s suggestion, the Rule 62.1 procedure would actually 

save “time and resources”—not waste them. Indeed, in recognition of Rule 62.1’s efforts to 

promote judicial economy, federal courts have often issued “indicative rulings” on motions for 

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reconsideration stating that they would revisit, expand, or otherwise change an already-issued 

preliminary injunction if the court of appeals remanded for that purpose.1

II. This Court Should Issue an Indicative Ruling that It Would Grant Burgess’s 

Reconsideration Motion if the Fifth Circuit Were To Remand for that Purpose. 

A. This Court’s Preliminary Injunction Order Erred by Relying on a Portion of 

Community Financial that Conflicts with the En Banc Decision in Cochran. 

As Burgess explained in his Reconsideration Motion, this Court would be bound to follow 

Cochran instead of Community Financial if there were a conflict between those cases, both 

because Cochran is the earlier-in-time decision and because it is an en banc opinion. See Mot. 13-

14. And such a conflict clearly exists. On the one hand, Community Financial held that the 

question “whether an unconstitutional removal protection ‘inflicted harm’ remains the same 

whether the petitioner seeks retrospective or prospective relief.” 51 F.4th at 631 (quoting Calcutt 

v. FDIC, 37 F.4th 293, 316 (6th Cir. 2022), mandate recalled & stayed, No. 22A255, 2022 WL 

4546340 (U.S. Sept. 29, 2022)). On the other hand, Cochran held that Collins’s requirement that 

a challenger show a “compensable harm” attributable to a removability defect does not apply when 

the plaintiff or petitioner merely “seeks an administrative adjudication untainted by separation-ofpowers violations” and “does not seek to ‘void’ the acts of any [agency] official.” 20 F.4th at 210 

n.16. These competing statements in Community Financial and Cochran are clearly irreconcilable, 

to the extent that Community Financial can be read as applying to this case at all. See Mot. 14-19; 

accord Consumers’ Research v. Consumer Prod. Safety Comm’n, No. 6:21-cv-256, 2022 WL 

1 See, e.g., Index Newspapers LLC v. City of Portland, No. 3:20-cv-1035, 2022 WL 72124, at *1 (D. Or. Jan. 7, 2022); 

Ivan A. v. Anderson, No. 20-cv-2796, 2021 WL 858608, at *1 (D.N.J. Mar. 8, 2021); Berger v. Nat’l Bd. of Med. 

Examiners, No. 1:19-cv-99, 2020 WL 2110576, at *2 (S.D. Ohio May 4, 2020); Gibbs v. Stockwell, No. 2:18-cv12392, 2019 WL 6519976, at *1 (E.D. Mich. Aug. 23, 2019); Callahan v. United States Dep’t of Health & Human 

Servs. ex. rel Azar, No. 1:19-cv-1783, 2019 WL 13060746, at *5 (N.D. Ga. Aug. 16, 2019); Overstreet v. Apex Linen 

Serv., Inc., No. 2:17-cv-2923, 2018 WL 2245145, at *2 (D. Nev. Apr. 19, 2018); Pueblo of Pojoaque v. New Mexico, 

214 F. Supp. 3d 1028, 1123 (D.N.M. 2016), aff’d, 863 F.3d 1226 (10th Cir. 2017); see also New York v. United States 

Dep’t of Homeland Sec., 475 F. Supp. 3d 208, 216, 231 (S.D.N.Y. 2020). 

Case 7:22-cv-00100-O Document 68 Filed 01/27/23 Page 5 of 17 PageID 1050
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1577222, at *13 (E.D. Tex. Mar. 18, 2022), appeal docketed May 18, 2022 (5th Cir. No. 22-

40328). Thus, this Court should have followed Cochran and not Community Financial. 

In attempting to elide the conflict between Cochran and Community Financial, the 

government relies principally on two arguments. First, the government insists that “[f]ootnote 16 

of the Cochran majority opinion cannot bear the weight Burgess places upon it” because that 

footnote purportedly does not include any “discussion of whether Collins permits challengers to 

obtain prospective relief without showing compensable harm.” Opp. 9. With respect, that is 

plainly wrong. Footnote 16 clearly states that Collins’s requirement to show an “injury” in the 

form of a compensable harm “does not impact . . . this case” because the petitioner was “not 

seek[ing] to ‘void’ the acts of any [agency] official.” 20 F.4th at 210 n.16 (emphasis added). It is 

difficult to imagine how the Court could have indicated more clearly that there was a material 

difference between (1) cases where a plaintiff (like Burgess) seeks prospective relief in the form 

of “an administrative adjudication untainted by separation-of-powers violations” and (2) cases 

where a plaintiff (unlike Burgess) seeks retrospective relief in the form of “‘void[ing]’ the acts of 

any [agency] official.” Id. As the Court made clear, Collins’s “compensable harm” rule “does 

not impact” the former set of cases seeking prospective relief, but it does “impact” the latter set 

of cases seeking retrospective relief. Burgess’s case clearly falls into the former camp, which the 

government does not dispute. 

Second, the government argues that footnote 16 of Cochran does not contain “a holding” 

because “[t]he constitutionality of removal restrictions was not at issue in Cochran,” which, in the 

government’s telling, was a case that considered only the question of whether the Exchange Act 

“implicitly strips federal district courts of subject-matter jurisdiction to hear structural 

constitutional claims.” Opp. 9-10 (internal quotation marks omitted). That argument evinces a 

Case 7:22-cv-00100-O Document 68 Filed 01/27/23 Page 6 of 17 PageID 1051
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fundamental misunderstanding of both footnote 16 and the argument in the dissent to which 

footnote 16 was responding. The dissenters in Cochran argued that the injury posed by an 

unconstitutionally appointed officer was supposedly less “serious” than the injury posed by an 

unconstitutionally insulated officer, because in the former case (but not the latter) the officer’s 

actions would automatically be “void” ab initio. See Cochran, 20 F.4th at 243-44 (Costa, J., 

dissenting). The dissent then reasoned that, because a petitioner has a meaningful opportunity to 

present an Appointments Clause challenge in post-enforcement review, it must be the case that 

post-enforcement review also provides a meaningful opportunity to seek judicial review of the less 

“serious” separation-of-powers problem. See id. The majority rejected that argument because it 

rested on the incorrect premise that Ms. Cochran was “seek[ing] to ‘void’ the acts of any SEC 

official.” Id. at 210 n.16 (majority). In so holding, the majority made it unmistakably clear that 

the remedial framework prescribed by Collins—including the requirement to show a 

“compensable harm”—does not apply when a plaintiff or petitioner seeks only an “administrative 

adjudication untainted by separation-of-powers violations.” Id. And that was clearly a holding, 

because it was integral to the Court’s interpretation of Collins. 

In any case, the next paragraph of footnote 16—which the government does not discuss at 

all—removes any doubt about this issue. There the majority emphasized that Collins should not 

be interpreted to foreclose all “hope” that Ms. Cochran could receive “meaningful judicial review” 

on her removability claim. Cochran, 20 F.4th at 210 n.16. The interpretation of Collins offered 

by the government—and credited in this Court’s Order—runs afoul of that guidance. If Collins 

were interpreted to apply to requests for prospective relief (despite the fact that there was no live 

request for prospective relief in Collins (see Opp. 6)), then plaintiffs and petitioners could succeed 

on a removability claim only by pointing to public statements that an officer would have been 

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removed but for a removal protection. See Collins v. Yellen, 141 S. Ct. 1761, 1789 (2021). Given 

that those cases are “quite uncommon” and “very challenging” to prove, the only way to permit 

the type of “meaningful judicial review” demanded by the Cochran majority is to read Collins as 

limited to requests for retrospective relief. Cochran, 20 F.4th at 232-33 (Oldham, J., concurring). 

For these reasons, the Court should enter an indicative ruling stating that it would grant the 

Reconsideration Motion and follow Cochran with regard to Counts 1 and 2 of the Complaint. 

B. This Court Can Read Cochran and Community Financial in Concert. 

Burgess’s Reconsideration Motion explained that, where possible, district courts in this 

Circuit must avoid interpreting two Fifth Circuit cases to create a conflict of authority. See Mot. 

19. Burgess then explained that, given the facts here, this Court could discharge that obligation 

by either (1) finding that Community Financial does not answer the question presented in this case 

or (2) finding that the relevant portion of Community Financial is non-binding dicta. See Mot. 19-

24. The government offers no compelling rebuttal to either of these points. 

1. Community Financial Does Not Apply When, As Here, a Plaintiff 

Pressing a Removability Argument Seeks Prospective Relief Only. 

The easiest way to avoid a conflict between Cochran and Community Financial would be 

to hold that Community Financial does not apply when, as here, the plaintiff seeks only prospective 

relief and does not request that any agency action be unwound. As Burgess has already explained 

at length, the plaintiffs in Community Financial did not argue that they would have any entitlement 

to prospective relief if the Payday Lending Rule at issue in that case was not retrospectively 

vacated. Mot. 19-20. By contrast, Burgess has not requested that this Court vacate any agency 

action, and his entitlement to prospective relief does not depend on this Court doing so. This Court 

should therefore interpret Community Financial as being limited to cases where a plaintiff seeks 

to vacate prior agency action, because any broader interpretation would place Community 

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Financial into conflict with Cochran and would render Collins’s remedial analysis a dead letter. 

Mot. 19-22. 

The government’s Opposition offers no real response to this argument. Instead, it rests on 

the conclusory suggestion that “[Community Financial] does not conflict with Cochran,” meaning 

that Community Financial should be read at “face value” instead of “narrowly.” Opp. 10-11. But, 

as explained above, Community Financial does conflict with Cochran (if Cochran is read as the 

government suggests). See supra at 5. In order to read Community Financial to support the 

government’s view, one would be required to expand that case beyond the particular facts it 

presented by presuming that the rule it prescribed would also apply to situations in which the 

plaintiff or petitioner sought only prospective relief (which was not the case in Community 

Financial). 

The government also objects to Burgess’s contention that Community Financial “may well 

have been decided differently if the panel had been made aware of the import of the Cochran 

decision for its remedial analysis.” Opp. 12 (quoting Mot. 12). The government claims that the 

“issue of whether the Collins harm requirement applies to claims for prospective relief was briefed 

by the parties in [Community Financial].” See id. at 12 & n.17. But the government concedes—

as it must—that the Cochran case was not cited in the parties’ briefs in that case and was not 

discussed at argument. Id. at 12 n15. The fact that the parties’ briefs discussed the harm 

requirement for removability claims in general terms (without discussing Cochran itself) is of no 

moment, because the specific question presented in this case is how Cochran affects the analysis. 

The Fifth Circuit had no occasion to consider that question in Community Financial, because the 

parties did not bring Cochran to the Court’s attention or exchange adversarial briefing on the 

import of that decision. 

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2. The Relevant Portion of Community Financial Was Dicta. 

As a final basis for reconsideration, Burgess argued that the portion of Community 

Financial on which the Order relied was dicta because the plaintiffs in that case conceded that the 

Collins framework applied to their case. Indeed, the Community Financial plaintiffs went so far 

as to inform the Court that it “need not resolve whether Collins applies to prospective relief”—i.e., 

the exact issue at the center of the dispute in this case—because they had satisfied Collins’s 

requirement to show a “compensable harm.” Mot. 22-23; see id. at 11-12 & nn.16-17. The 

government’s chief response is to suggest that Burgess’s cases concerning forfeiture “do[] not help 

his cause because, in each of those opinions, the court in the prior case had found that an issue had 

been forfeited,” whereas in Community Financial the “Fifth Circuit did not find that the plaintiffs 

had forfeited their argument on the Collins harm requirement.” Opp. 13 (footnotes omitted). 

According to the government, this case differs from those cited by Burgess because (1) the 

Community Financial “plaintiffs made no concession on the applicability of the Collins harm 

requirement” and (2) even if the plaintiffs had made such a concession, “the Court did not rely on 

that concession” but instead gave the issue “reasoned consideration.” Opp. 14; see id. (discussing 

Ochoa-Salgado v. Garland, 5 F.4th 615 (5th Cir. 2021)). Neither argument is correct. 

As to the first argument, the government attempts to downplay the significance of the 

Community Financial plaintiffs’ 28(j) letter, which the government believes is “best read” as 

suggesting that the plaintiffs would “still win” even “if the Court reads Collins the way the Sixth 

Circuit did in Calcutt.” Opp. 15. The government’s subjective and ex post gloss on the letter 

cannot change its contents. The Community Financial plaintiffs stated that “the Court need not 

resolve whether Collins applies to prospective relief” (Mot. 11 n.16) and should instead “simply 

assume arguendo that Collins applies” (id. at 12 n.17, 23). Indeed, the government itself previously 

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agreed that the Community Financial plaintiffs had “concede[d] that the Collins framework 

governs.” Mot. 23 & n.23. But now that the shoe is on the other foot, the government finds itself 

in the strange position of arguing that its own prior statements were incorrect. See Opp. 15. 

As to the second argument, the government misapprehends the relevant rule from this 

Court’s case law. The question is not whether the Community Financial plaintiffs’ letter 

constitutes a “forfeiture” in the formal sense of that word. Instead, the question is whether the 

prior panel was confronted with a situation in which “a party made an explicit concession” as to a 

certain issue; if so, the law in this Circuit is that the issue will be treated as if it were “not raise[d].” 

Ochoa, 5 F.4th at 619-20. Here, the government admits that the Community Financial plaintiffs 

“concede[d] that the Collins framework govern[ed]” their case. Mot. 23 & n.23. That 

concession—combined with the fact that Cochran was not briefed or argued to the Community 

Financial panel—compels the conclusion that courts in this Circuit are not bound by Community 

Financial. 

CONCLUSION 

For the reasons stated herein and in the Reconsideration Motion, the Court should issue an 

indicative ruling under Federal Rule of Civil Procedure 62.1(a) stating that it would grant 

Burgess’s Reconsideration Motion if the Fifth Circuit were to remand for that purpose. 

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Dated: January 27, 2023 Respectfully submitted, 

 /s/ Manuel G. Berrelez 

Michael A. Heidler (TX Bar No. 24059921) 

 Email: mheidler@velaw.com 

VINSON & ELKINS LLP 

200 West 6th Street, Suite 2500 

Austin, Texas 78701 

Telephone: (512) 542-8579 

James T. Dawson (TX Bar No. 24094618) 

 Pro Hac Vice (DC Bar No. 1602502) 

 Email: jamesdawson@velaw.com 

VINSON & ELKINS LLP 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

Telephone: (202) 639-6588

Manuel G. Berrelez (TX Bar No. 24057760) 

 Email: mberrelez@velaw.com 

Thomas P. Mitsch (TX Bar No. No. 24102218) 

 Email: tmitsch@velaw.com 

James F. Hopper (TX Bar No. 24116535) 

 Email: jhopper@velaw.com 

Madelyn C. Stanley (TX Bar No. 24121529) 

 Email: mstanley@velaw.com 

VINSON & ELKINS LLP 

Trammell Crow Center

2001 Ross Avenue, Suite 3900

Dallas, Texas 75201 

Telephone: (214) 220-7700 

Facsimile: (214) 220-7716 

Counsel for Plaintiff Cornelius Campbell Burgess

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CERTIFICATE OF SERVICE 

I hereby certify that on this 27th day of January, 2023, I caused the foregoing document to 

be filed with the Clerk of the U.S. District Court for the Northern District of Texas via the Court’s 

CM/ECF system, which will notification of such filing to be send to all counsel and parties of 

record registered to receive such notices. 

 Dated: January 27, 2023 Respectfully submitted, 

/s/ Manuel G. Berrelez 

Manuel G. Berrelez (Texas Bar No. 24057760) 

 mberrelez@velaw.com 

VINSON & ELKINS LLP 

Trammell Crow Center 

2001 Ross Avenue, Suite 3900 

Dallas, Texas 75201 

Telephone: (214) 220-7700 

Facsimile: (214) 220-7716 

Counsel for Plaintiff Cornelius Campbell Burgess 

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CERTIFICATE OF COMPLIANCE 

I hereby certify that this document complies with the applicable type-volume limitation in 

Local Civil Rule 7.2(c) because it contains no more than 10 pages. 

 Dated: January 27, 2023 Respectfully submitted, 

/s/ Manuel G. Berrelez 

Manuel G. Berrelez (Texas Bar No. 24057760) 

 mberrelez@velaw.com 

VINSON & ELKINS LLP 

Trammell Crow Center 

2001 Ross Avenue, Suite 3900 

Dallas, Texas 75201 

Telephone: (214) 220-7700 

Facsimile: (214) 220-7716 

Counsel for Plaintiff Cornelius Campbell Burgess

Case 7:22-cv-00100-O Document 68 Filed 01/27/23 Page 14 of 17 PageID 1059
Case 7:22-cv-00100-O Document 68 Filed 01/27/23 Page 15 of 17 PageID 1060
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Berrelez, Manuel G.

From: Berrelez, Manuel G.

Sent: Wednesday, January 11, 2023 11:02 PM

To: Nicely, Andrew A.

Cc: Dober, Andrew J.; Dawson, James; Mitsch, Tom; Hopper, Jimmy; Stanley, Madelyn

Subject: RE: Burgess v. FDIC - Plaintiff's Motion for Reconsideration

Andrew – Thanks for your email, and happy new year to you. Under Federal Rule of Civil Procedure 62.1, Judge 

O’Connor retains the option to resolve our pending reconsideration motion by “stat[ing that he] would grant the motion 

if the court of appeals remands for that purpose.” Fed. R. Civ. P. 62.1(a)(3). If Judge O’Connor were to provide an 

“indicative ruling” of that type, we would immediately inform the Fifth Circuit and request a remand. Upon remand, 

Judge O’Connor would unquestionably have jurisdiction and could modify the injunction so as to grant relief on Counts 1 

and 2. 

As we discussed with your colleague Mr. Brooks earlier today, our position is that it is appropriate to stay the existing 

merits briefing schedule in the Fifth Circuit pending Judge O’Connor’s disposition of our reconsideration motion. We 

have no intent at this time to withdraw the reconsideration motion, especially given Judge O’Connor’s comment at the 

November 28 status conference that he was “interested” in reviewing that filing. Status Conf. Tr. 16:18. 

As always, we would be glad to talk by telephone if you think that would be helpful. 

Thanks, 

Manuel 

Manuel G. Berrelez

Partner

E mberrelez@velaw.com

W +1.214.220.7709

Vcard | Bio | velaw.com

From: Nicely, Andrew A. <anicely@FDIC.gov> 

Sent: Wednesday, January 11, 2023 12:41 PM 

To: Berrelez, Manuel G. <mberrelez@velaw.com> 

Cc: Dober, Andrew J. <adober@FDIC.gov>; Dawson, James <jamesdawson@velaw.com>; Mitsch, Tom 

<tmitsch@velaw.com>; Hopper, Jimmy <jhopper@velaw.com>; Stanley, Madelyn <mstanley@velaw.com> 

Subject: Burgess v. FDIC - Plaintiff's Motion for Reconsideration 

Dear Manuel, 

[EXTERNAL]

Case 7:22-cv-00100-O Document 68 Filed 01/27/23 Page 16 of 17 PageID 1061
2

In light of your client’s notice of cross-appeal to the Fifth Circuit from the November 6 order granting Burgess’ 

motion for preliminary injunction and the December 1 order issuing an injunction, there is no aspect of those two rulings 

that is not before the Fifth Circuit. As a result, the District Court lacks jurisdiction to modify those orders. I am writing to 

request that you withdraw your pending motion for reconsideration in the District Court. We hope you will agree not to 

waste the Court’s time and resources pursuing the motion. Given that our opposition is due this Friday, I would be 

grateful for a prompt response. 

Best regards, 

Andrew Nicely 

Andrew A. Nicely 

Counsel – FDIC 

Tel. 703.516.5729 

anicely@fdic.gov

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