United States Court of Appeals

for the Fifth Circuit

No. 21-60312

Jackson Municipal Airport Authority; Board of 

Commissioners of the Jackson Municipal Airport 

Authority, each in his or her official capacity as a Commissioner on the 

Board of Commissioners of the Jackson Municipal Airport Authority; Doctor 

Rosie L. T. Pridgen, in her official capacity as a Commissioner on the 

Board of Commissioners of the Jackson Municipal Airport Authority; 

Reverend James L. Henley, Jr., in his official capacity as a 

Commissioner on the Board of Commissioners of the Jackson Municipal Airport 

Authority; LaWanda D. Harris, in her official capacity as a 

Commissioner on the Board of Commissioners of the Jackson Municipal Airport 

Authority; Vernon W. Hartley, Sr., in his official capacity as a 

Commissioner on the Board of Commissioners of the Jackson Municipal Airport 

Authority; Evelyn O. Reed, in her official capacity as a Commissioner on 

the Board of Commissioners of the Jackson Municipal Airport Authority; 

Doctor Rosie L. T. Pridgen, individually as citizens of the City of 

Jackson, Mississippi, on behalf of themselves and all others similarly situated; 

LaWanda D. Harris, individually as citizens of the City of Jackson, 

Mississippi, on behalf of themselves and all others similarly situated; Vernon 

W. Hartley, Sr., individually as citizens of the City of Jackson, 

Mississippi, on behalf of themselves and all others similarly situated; Evelyn 

O. Reed, individually as citizens of the City of Jackson, Mississippi, on behalf 

of themselves and all others similarly situated; James L. Henley, Jr., 

individually as citizens of the City of Jackson, Mississippi, on behalf of 

themselves and all others similarly situated, 

Intervenors—Appellees, 

versus

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2023

Lyle W. Cayce

Clerk

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Josh Harkins; Dean Kirby; Phillip Moran; Chris 

Caughman; Nickey Browning; John A. Polk; Mark Baker; 

Alex Monsour, 

Respondents—Appellants.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:16-CV-246

Before Dennis, Elrod, and Duncan, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:*

A group of Mississippi legislators appeals a district court order 

instructing them to produce: (1) a privilege log; and (2) communications and 

documents that have been shared with third parties. We hold that the district 

court did not abuse its discretion in ordering the Legislators to produce a 

privilege log. But the district court erred in broadly holding that legislative 

privilege was automatically waived for any documents that have been shared 

with third parties. Accordingly, we AFFIRM in part, REVERSE in part, 

and REMAND for further proceedings.

I

The Jackson-Medgar Wiley Evers International Airport is a major 

airport located in Jackson, Mississippi. Since 1960, the airport has been

operated by the Jackson Municipal Airport Authority, whose five 

commissioners are selected by the city government. But in 2016, the 

Mississippi legislature passed, and the governor signed into law, SB 2162. Id.

§ 61-3-6. SB 2162 abolishes the Jackson Municipal Airport Authority and 

* Judge Dennis joins Part IV and Section V.A of this opinion. Judge Duncan joins 

Part III and Section V.B of this opinion.

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replaces it with a regional authority composed of nine commissioners, only 

two of whom are selected by Jackson city government. Id.

Shortly before the Governor signed SB 2162 into law, a Jackson citizen 

filed a suit seeking to enjoin the law. The mayor, the city council, the Jackson 

Municipal Airport Authority, its board of commissioners, and the 

commissioners in their individual capacities intervened in that lawsuit. The 

intervenors contend that SB 2162 violates the Equal Protection rights of the 

citizens of Jackson by eliminating the locally controlled Jackson Municipal 

Airport Authority for racially discriminatory reasons.

During discovery, the intervenors served subpoenas on eight nonparty state legislators who participated in SB 2162’s drafting and passage. 

The Legislators refused to comply with Request #3 in the subpoena, which 

sought documents and communicationsrelated to SB 2162, asserting that any 

responsive discovery would either be irrelevant or protected by legislative 

privilege. The magistrate judge, and later the district court, rejected this 

position. The order noted that because legislative privilege is qualified, the 

Legislators must produce a privilege log before any assertions can be 

assessed. It also held that the “privilege has been waived for documents that 

have been shared with third parties,” and that “the Legislators must produce 

the nonprivileged documents responsive to Request #3.” The Legislators 

appealed and a panel of this court vacated the district court’s order. 

Stallworth v. Bryant, 936 F.3d 224 (5th Cir. 2019). But the panel did not reach

the merits because it held that the Commissioners lacked standing. Id. at

229–32.

On remand, the district court allowed the plaintiffs to amend their 

complaint to cure the standing defect and add two newly appointed 

commissioners as plaintiffs. The Commissioners again served subpoenas on 

the Legislators seeking the exact same information as the prior subpoenas. 

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The Legislators again objected on the basis of legislative privilege; the district 

court again ordered the Legislators to comply with the subpoena; and the 

Legislators again declined and appealed.

This appeal raises four issues: (1) whether this court has appellate 

jurisdiction; (2) whether the Commissioners have standing; (3) whether 

legislative privilege relieves the Legislators from having to submit a privilege 

log; and (4) whether the district court erred in holding that legislative 

privilege was waived for any documents that have been shared with third 

parties.

II

We review questions of subject-matter jurisdiction de novo. Houston 

Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 400 

(5th Cir. 2014). A subpoena enforcement order is generally reviewed for 

abuse of discretion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016). 

But we review a district court’s determination of controlling law de novo. In 

re Avantel, S.A., 343 F.3d 311, 318 (5th Cir. 2003).

III

Generally, appellate jurisdiction is statutorily confined to review of 

“final decisions.” 28 U.S.C. § 1291. But “the Supreme Court ‘has long 

given’ § 1291a ‘practical rather than a technical construction.’” Leonard v. 

Martin, 38 F.4th 481, 486 (5th Cir. 2022) (quoting Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 546 (1949)). Accordingly, section 1291

encompasses not only the final decisions that terminate an action, “but also 

a small class of collateral rulings that, although they do not end the litigation, 

are appropriately deemed final.” Id. (quoting Mohawk Indus., Inc. v. 

Carpenter, 558 U.S. 100, 106 (2009)) (internal quotation marks omitted).

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Under this court’s precedent, the Legislators have the right to 

immediately appeal the district court’s order. Our decisions in Cates and 

Branch are instructive. Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th 

Cir. 1973); Branch v. Phillips Petroleum Co., 638 F.2d 873, 879 (5th Cir. 1981). 

In Cates, we considered whether a subpoena upon a government 

representative can be used to obtain documents that are not in the custody of 

that representative. Before addressing the merits, we first considered

whether appellate jurisdiction existed. We held that it did because

“discovery orders may be appealable” when governmental privilege is 

involved and the government “is not a party to the lawsuit.” Cates, 480 F.2d 

at 622.

While our decision in Cates only considered an instance where the 

subpoenaed entity was not in custody of the relevant documents, our 

subsequent opinion in Branch observed that “Cates clearly extends the right 

of immediate appeal to the government even when it is itself in custody of the 

subpoenaed material.” 638 F.2d at 879. Likewise, relying on this court’s

holding in Cates and Branch, the Eleventh Circuit has held that “one who 

unsuccessfully asserts a governmental privilege may immediately appeal a 

discovery order where he is not a party to the lawsuit.” In re Hubbard, 803 

F.3d 1298, 1305 (11th Cir. 2015). Thus, in accordance with our precedent

and the Eleventh Circuit’s decision in Hubbard, we hold that appellate 

jurisdiction exists in this case. Id.; Cates, 480 F.2d at 622; Branch, 638 F.2d 

at 879; see also Leonard, 38 F.4th at 487 (observing that the Fifth Circuit

“allows immediate appeal of orders” that “implicate[] ‘some particular 

value of a high order’ or ‘substantial public interest’ that would be imperiled 

or destroyed if review were delayed until after entry of an archetypal final 

judgment.” (quoting Mohawk, 558 U.S. at 107)).

The Commissioners argue that we lack appellate jurisdiction here 

because “[n]othing about the district court’s order forces ‘disclosure’ of any 

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documents.” The Commissioners assert that the order “merely requires the 

Legislators to provide a privilege log.” Citing our decision in Banca Pueyo, 

the Commissioners argue that we lack appellate jurisdiction here because the 

order is merely a preliminary step in the resolution of this discovery dispute. 

Banca Pueyo SA v. Lone Star Fund IX (US), L.P., 978 F.3d 968 (5th Cir. 

2020).

But the order here is not merely a preliminary step because it

specifically ordered the Legislators to produce any documents that had been 

shared with third parties. Contrary to Judge Dennis’s partial dissent, the 

magistrate judge’s finding is not just a “summary of the state of the law 

regarding legislative privilege.” Post, at 15. The order stated:

The Court finds that to the extent documents or information 

otherwise protected by the legislative privilege have been 

shared with third parties, the privilege has been waived. 

Accordingly, the Legislators must produce those documents.

Order Granting in Part and Denying in Part Motion to Enforce Subpoenas at 

13, Jackson Mun. Airport Auth. v. Reeves, No. 16-CV-246 (S.D. Miss. Dec. 19, 

2017) (emphasis added).

The magistrate judge held that documents or information that “have 

been shared with third parties” are non-privileged and that “the Legislators 

must produce the nonprivileged documents.” Because the Legislators were 

ordered to produce all non-privileged documents, it necessarily follows that 

the Legislators were ordered to produce documents that had been shared 

with third parties. That is unquestionably a final discovery order because the 

Legislators could no longer assert any privilege as to those documents.

And so, Banca Pueyo is distinguishable. In Banca Pueyo, we held that 

there was no appellate jurisdiction because the appealed order did "not 

conclusively determine whether, and to what extent, discovery might be 

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required.” 978 F.3d at 973. Here, the order did so. Accordingly, unlike the 

order in Banca Pueyo, the order here constitutes a final discovery order that 

is appealable under our precedent. See Branch, 638 F.2d at 879; Cates, 480 

F.2d at 622.

IV

Next, we consider standing. The Commissioners have standing in this 

case based on the amended complaint that was filed after remand. To have 

standing, the plaintiffs must have suffered an invasion of a legally protected 

interest that is: (1) “concrete, particularized, and actual or imminent”; (2) 

“fairly traceable to the challenged action”; and (3) “redressable by a 

favorable ruling.” Stallworth, 936 F.3d at 229–30 (citation omitted). The 

Commissioners fulfill these conditions.

A

1

The alleged injury is concrete because the Commissioners will be 

deprived of their benefits if they lose their position. As Commissioners, they 

are entitled to receive a per diem for their service and a travel reimbursement 

that allows them to obtain specialized training in airport administration. In 

addition to these tangible benefits, their positions also confer substantial 

status and authority because as commissioners, they exercise considerable 

power over the airport by overseeing finances and operations and defining 

the airport’s strategic goals. We hold that the potential loss of benefits that 

comes with the Commissioners’ position is sufficiently concrete to support 

the Commissioners’ standing. See Spokeo, Inc. v. Robins, 578 U.S. 330, 340 

(2016) (“Concrete is not, however, necessarily synonymous with tangible.”

(quotation marks omitted)); see also Stallworth, 936 F.3d at 232 

(Higginbotham, J., concurring) (noting that the Commissioner’s “position 

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of status and authority may be a sufficient injury for their standing”).1 The 

Legislators did not meaningfully challenge the concreteness of the alleged 

injury.

2

The alleged injury is also sufficiently particularized because the 

Commissioners would suffer a personal injury from losing their seats. They 

are the only people who would lose the position as commissioners and the 

benefits that come with the position if SB 2162 is allowed to become effective. 

Cf. Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 388 (5th Cir. 2017) (holding 

that an injury was not particularized where plaintiffs’ harm was same as harm 

to “millions of people”). 

The Legislators argue that because SB 2162 abolishes the entirety of 

Jackson Municipal Airport Authority (not just the Commissioners’ seats),

the harm is not particularized to the Commissioners. Citing Raines v. Byrd, 

521 U.S. 811 (1997), the Legislators contend that the alleged injury is “the 

sort of institutional injury which the Supreme Court has held insufficient to 

establish standing for Members of Congress.” But Raines hardly supports 

the Legislators’ position here.

In Raines, the Supreme Court considered whether Members of 

Congress have standing to seek a declaration of the unconstitutionality of an 

act passed over their negative votes. The Court held that the Congressmen 

1 A panel of this court in Stallworth held that the plaintiffs had no standing because 

“The complaint never suggests—as counsel did during oral argument—that the individual 

commissioners are volunteers reimbursed for some expenses, that Mississippi law 

recognizes volunteers as public employees in some contexts, and that the combination 

might give them standing to challenge SB 2162.” Stallworth v. Bryant, 936 F.3d 224, 232

(5th Cir. 2019). The plaintiffs have since amended their complaint and cured that defect 

on remand.

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did not have standing because their claim was “based on a loss of political 

power, not loss of something to which they are personally entitled.” Id. at 

821. The Court observed that the alleged harm there was not sufficiently 

particularized because “appellees do not claim that they have been deprived 

of something to which they personally are entitled—such as their seats as 

Members of Congress after their constituents had elected them.” Raines, 521

U.S. at 821. Unlike the plaintiffs in Raines, the Commissioners are alleging 

deprivation of something to which they are personally entitled: their seats as 

Commissioners and the benefits that come with the position. Accordingly, 

we hold that the alleged injury is sufficiently particularized to support the 

Commissioners’ standing.

3

Further, the alleged injury is imminent because SB 2162 abolishes the 

Jackson Municipal Airport Authority and thus the Commissioners’ 

positions. On this issue, the Legislators argue that the injury is not imminent 

because SB 2162 will not immediately abolish the Jackson Municipal Airport 

Authority. They note that the Authority will continue to exist until the 

Federal Aviation Administration approves the new Jackson Metropolitan 

Area Airport Authority. 

In response, the Commissioners argue that “the time delay that [the 

Legislators] claim is fatal to the Commissioners’ standing is almost entirely 

caused by the fact that this lawsuit is pending: the only reason the FAA has 

not considered the transfer yet is because FAA declines to do so while there 

is active litigation concerning a contested transfer of airport control.” See

FAA’s “Notice of Policy on Evaluating Disputed Changes of Sponsorship at 

Federally Obligated Airports,” 81 Fed. Reg. 36144, 36145 (Jun. 6, 2016). The 

Legislators never denied that assertion. Nor did they provide any reason to 

suggest that the FAA may decide not to approve the new authority. Rather, 

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the Legislators merely assert that “[e]ven if the dismissal of the complaint 

will ultimately lead to approval by the FAA of the new Authority, the process 

may take a very long time.”

But the fact that the approval process might take a very long time is 

insufficient to defeat the Commissioners’ standing because the alleged injury 

here is still likely to occur and is “certainly impending.” Friends of the Earth, 

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 170 (2000); see Susan 

B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Thus, we hold that the 

Commissioners satisfy the imminence requirement.

B

Finally, we address traceability and redressability. The alleged injury

is traceable to SB 2162 because the law, by its very own terms, eliminates the 

Commissioners’ positions. As to redressability, the Commissioners here are 

seeking an injunction against SB 2162 and a declaration that SB 2162 is 

unconstitutional. The Legislators argue this will not redress any harm 

because the Commissioners could lose their positions for some other reason. 

But the redressability prong does not require a remedy that covers every

conceivable injury, just one that redresses the harm caused by SB 2162. 

Enjoining the enforcement of SB 2162 would prevent the law from abolishing 

the Jackson Municipal Airport Authority, and thus the Commissioners’ 

positions. Consequently, the alleged injury is redressable by the relief sought.

Accordingly, based on the operative complaint, the Commissioners

have standing in this case.

V

Having considered jurisdiction and standing, we now proceed to the 

merits. The district court ordered the Legislators to produce: (1) a privilege 

log; and (2) communications and documents that have been shared with third 

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parties. On appeal, the Legislators argue that this court should reverse both 

aspects of the order. We address each aspect in turn.

A

First, the Legislators contend that no privilege log should be required 

because the Commissioners seek only evidence of motive, and any evidence 

of motive is privileged. And because the Equal Protection claim is based 

entirely on motive, the Legislators assert that any non-motive evidence 

would be irrelevant. Put simply, the Legislators argue that all the requested 

communications would either be privileged or irrelevant. Thus, they 

conclude that they need not produce a privilege log.

But a privilege log would not be useless because evidence of legislative 

motive is not necessarily privileged. As the Legislators themselves 

recognized, legislative privilege can be waived when certain conditions apply. 

For example, legislative privilege as to certain documents is waived when the 

Legislator publicly reveal those documents. Favors v. Cuomo, 285 F.R.D. 187 

(E.D.N.Y. 2012) (“[A] legislator waives his or her legislative privilege when 

the legislator publicly reveals documents related to internal deliberations.”). 

Likewise, statements that have no connection whatsoever with “legitimate 

legislative activity” are not protected by legislative privilege. Hubbard, 803 

F.3d at 1308 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)); see

Tenney, 341 U.S. at 377 (“Legislators are immune from deterrents to the 

uninhibited discharge of their legislative duty, not for their private indulgence 

but for the public good.”). Accordingly, we agree with the district court that

a privilege log is necessary to determine which of the requested documents 

and communications are protected by legislative privilege.

B

Although the district court did not abuse its discretion in ordering the 

Legislators to produce a privilege log, the district court’s determination that 

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legislative privilege had been waived for any “documents or information 

[that] have been shared with third parties” is overbroad. Legislative privilege 

applies to communications where the legislator or his agent was acting within 

“the sphere of legislative activity.” Id. And the privilege is “not limited to 

the casting of a vote on a resolution or bill; it covers all aspects of the

legislative process.” Almonte v. City of Long Beach, 478 F.3d 100, 107 (2d Cir. 

2007).

As relevant here, communications with third parties outside the 

legislature might still be within the sphere of “legitimate legislative activity”

if the communication bears on potential legislation. Hubbard, 803 F.3d at 

1308. Consequently, some communications with third parties, such as 

private communications with advocacy groups, are protected by legislative 

privilege when they are “a part and parcel of the modern legislative 

procedures through which legislators receive information possibly bearing on 

the legislation they are to consider.” Almonte, 478 F.3d at 107 (quoting Bruce 

v. Riddle, 631 F.2d 272, 280 (4th Cir. 1980)). Thus, we disagree with the

district court’s broad pronouncement that the Legislators waived their 

legislative privilege for any documents or information that had been shared 

with third parties.

2

* * *

Accordingly, we AFFIRM in part, REVERSE in part, and 

REMAND for further proceedings.

2 Finally, contrary to Judge Dennis’s partial dissent, our holding on this issue is not 

an “advisory opinion.” Post, at 14. The appellant squarely presented the issue before this 

court. And as explained in Part III, the magistrate judge made a final determination as to 

this issue, so we have appellate jurisdiction to consider it.

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James L. Dennis, Circuit Judge, concurring in part and dissenting in part:

I respectfully disagree with my colleagues that the district court 

ordered anything more than the production of a privilege log in this 

interlocutory appeal. Neither party has ever argued that the district court 

ordered the Legislators to produce any withheld discovery, and the order 

itself—contrary to the majority’s selective quotation—is clear: if the 

Legislators choose to withhold any responsive discovery on the basis of 

legislative privilege, they must sustain their assertion of privilege with a 

privilege log which the Commissioners may then challenge. The court will 

resolve any dispute, only then ordering production if appropriate. This, of 

course, is how assertions of privilege work in discovery practice. See Fed. 

R. Civ. P. 45(e)(2).1 The Legislators’ challenge to the first step of this 

process, before any assertion of privilege over specific discovery has been 

sustained, disputed, or adjudicated, is a challenge to an undetermined and 

inconclusive discovery dispute. It is unripe for appellate review. 

Because the district court only ordered the Legislators to produce 

“the customary privilege log”—nothing more—I disagree that there is 

appellate jurisdiction for their interlocutory appeal. However, as a majority 

of the court finds we have the power to entertain this appeal, I agree with 

Judge Elrod that the Commissioners have standing to assert their Equal 

Protection claim. Losing a job, and its social and material benefits, is not an 

1 The district court ordered the Legislators to submit a privilege log pursuant to 

Federal Rule of Civil Procedure 26(b)(5)(A). Rule 45(e)(2), formerly Rule 45(d), governs 

assertions of privilege over subpoenaed information, but the text of the two rules, as well 

as their obligations, are identical. See Fed. R. Civ. P. 45 advisory committee’s notes to 

1991 amendment subsection d and notes to 2007 amendment; Mosely v. City of Chicago, 252 

F.R.D. 421, 426 (N.D. Ill. 2008) (“Just as Rule 26(b)(5) requires parties lodging a claim of 

privilege against a discovery request to compile a privilege log, Rule 45(d)(2)(A)(ii) 

imposes the same obligation on nonparties responding to subpoenas.”).

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“institutional injury” simply because one happens to work for a public 

institution. I also agree that the Legislators’ argument that legislative 

privilege is so absolute as to exempt them from all discovery process, even 

the basic responsibility of sustaining their assertion of privilege as the Federal 

Rules require, fails.2 However, because I do not understand the district court 

to have ordered the production of any discovery, I view the majority’s 

attempt to reverse the magistrate judge’s statements of law as an advisory 

opinion which I cannot join.

In sum, I respectfully dissent from Section III of Judge Elrod’s 

opinion above, concur with Section IV and Section V.A, and dissent from the 

advisory opinion of Section V.B.

* * *

As my disagreement with the majority turns entirely on the nature of 

the order appealed, a detailed recounting of both the magistrate judge’s order 

and the district court order overruling the Legislators’ objections to the 

magistrate judge’s order is necessary. 

According to the majority, the magistrate judge’s order held that 

legislative privilege had been waived for documents that “have been shared 

with third parties,” and that “the Legislators must produce the 

nonprivileged documents.” Maj. Op. at 7. Read in the context of the entire 

order, neither of these quotes means what the majority thinks they do.

2 The Legislators’ notion that they need merely invoke legislative privilege to be 

entitled to it is unknown to federal discovery practice and obviously unworkable. “The 

person claiming a privilege or protection cannot decide the limits of that party’s own 

entitlement.” Fed. R. Civ. P. 45, advisory committee’s note to 1991 amendment 

subsection d.

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Starting with the second one first, the magistrate judge’s directive to 

produce nonprivileged documents is, by its very terms, not an order to 

produce privileged documents for which the privilege has been waived. 

Rather, it is an order to produce nonprivileged documents.3 At the time the 

Commissioners filed their motion to compel, the Legislators had not turned 

over any discovery in response to Request #3, including discovery over which 

they asserted no privilege. If the distinction between privileged and 

nonprivileged documents were not obvious from the plain meaning of the 

words, it is obvious from the remainder of the sentence in the order, which 

the majority omits. The omitted portion of the order states that the 

Legislators “must produce a privilege log identifying the responsive 

documents withheld from production under a claim of privilege.” The 

distinction is clear: Nonprivileged documents must be produced, and for 

privileged documents, a privilege log must be produced. Nothing orders the 

production of privileged documents for which privilege has been waived. 

The other supposed holding of the magistrate judge’s that the 

majority relies on for jurisdiction—that legislative privilege has been waived 

for documents shared with third parties—is also a misreading of the 

magistrate judge’s order. The complete sentence from which the majority 

selects its quote reads: “The Court finds that to the extent otherwiseprivileged documents or information have been shared with third parties, the 

privilege with regard to those specific documents or information has been 

waived.” This “finding,” which the majority treats as a holding, is the 

3 The majority tries to evade this distinction by mischaracterizing the record, 

saying that “[t]he magistrate judge held that documents or information that ‘have been 

shared with third parties’ are non-privileged,” Maj. Op. at 7, when in fact the order stated 

“to the extent documents or information otherwise protected by the legislative privilege 

have been shared with third parties, the privilege has been waived,” Maj. Op. at 6 (quoting 

the magistrate judge’s order) (emphasis added).

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magistrate judge’s summary of the state of the law regarding legislative 

privilege, not an application of that law to the specific discovery withheld. 

Immediately prior to the sentence cited by the majority, the order states that 

the Legislators “urge the Court to find” that, under the applicable caselaw, 

legislative privilege applies broadly to all communications with third parties, 

thus obviating the need to produce a privilege log. But after reviewing the 

caselaw, the magistrate judge “found” the law to be different than the 

Legislators’ account of it, notably that legislative privilege could be waived 

with respect to documents shared with certain third parties. The language 

the majority quotes is the magistrate judge’s summary of the applicable law, 

not an application of that law to any specific discovery withheld. Read in 

context, the language excerpted by the majority is simply the magistrate 

judge’s response to the Legislators’ argument that all communications, even 

those with third parties, are shielded by legislative privilege. This was the 

basis upon which the magistrate judge rejected the Legislators’ position that 

they need not provide a privilege log. That the magistrate judge qualified his 

statement about the applicability of the law—noting that “to the extent 

otherwise-privileged documents or information have been shared with third 

parties,” privilege would be waived—only demonstrates further that he had 

not, in fact, made any determination as to what specific discovery must be 

produced. 

Perhaps that is why nothing in the order’s decree actually directs the 

Legislators to produce any documents they have withheld on the basis of 

legislative privilege. The decretal portion of the order reads only: “By 

February 28, 2018, the Legislators must produce the nonprivileged 

documents responsive to Request #3 and must produce a privilege log 

identifying the responsive documents withheld from production under a 

claim of privilege.” Notably absent from this is the directive that the majority 

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says is there: produce otherwise privileged documents that have been shared 

with third parties.

If there were any ambiguity, the district court’s order overruling the

Legislators’ objections to the magistrate judge’s order makes clear that the 

only thing the magistrate judge ordered the Legislators to produce was a 

privilege log. As the district court stated:

The Magistrate Judge concluded that the state legislators subpoenaed 

in this action must create the customary privilege log. Once the 

privilege log is created and reviewed by all, the Magistrate Judge will 

adjudicate whether the plaintiffs can overcome the traditional 

privilege afforded to legislators’ communications with other 

legislators and legislative staff. He then indicated that the legislators 

will likely have to produce their communications with nonlegislative 

third parties, where the privilege was waived.

I read the magistrate judge’s order as the district court did. It directs the 

Legislators to produce a privilege log, and only after that will the application 

of legislative privilege to any withheld discovery be adjudicated.4 Implicit in 

4 Indeed, the magistrate judge himself laid out these standard steps of asserting and 

adjudicating claims of privilege in his order, stating further that the parties and the court 

would follow them:

Considering the claims in this case, the specific request, and the privilege 

at issue, the Court finds that Fed. R. Civ. P. 26 and L.U.Civ.R. 26 require 

a privilege log. Accordingly, should the Legislators withhold any 

documents responsive to Request #3, they must also produce a privilege 

log identifying all such documents, in accordance with Fed R. Civ. P. 26 

and L.U.Civ.R. 26. Should Plaintiffs wish to challenge a privilege claim as 

to any documents on the Legislators’ privilege logs, Plaintiffs must file a 

motion identifying the specific documents to which they contest the claim 

of privilege and setting forth their arguments for production under the 

Rodriguez factors and otherwise. After briefing on any such motion has 

been completed, the Court will, if necessary, conduct an in camera review, 

in whole or part, and rule on the motion.

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the statement that the magistrate judge “will adjudicate” any privilege 

dispute is the proposition that the magistrate judge has not yet done so. Any 

dispute over the application of legislative privilege to the withheld discovery 

has, as of this appeal, not yet been decided by the district court.

Finally, it is worth noting that what the majority claims the magistrate 

judge ordered is simply not possible under the Federal Rules. Rule 45(e)(2) 

provides that any person withholding subpoenaed information under a claim 

of privilege “must: (1) expressly make the claim; and (2) describe the nature 

of the withheld documents . . . in a manner that . . . will enable the parties to 

assess the claim.” That latter requirement of Rule 45(e)(2) is, of course, that 

of a producing a privilege log. Without the information contained in a 

privilege log, the Commissioners cannot “asses the claim” and the district 

court cannot adjudicate any dispute they might have with the Legislators’ 

assertion. Simply put, there cannot be an order to produce withheld 

discovery without a privilege log because the parties and the court lack the 

information needed to determine whether the privilege applies to the 

withheld discovery. See Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12 

(1st Cir. 1991) (“[T]he assertion of privilege . . . must also be accompanied

by sufficient information to allow the court to rule intelligently on the 

privilege claim.”); Peacock v. Merrill, No. 08-01-B-M2, 2008 WL 687195, at 

*3 (M.D. La. Mar. 10, 2008) (“Without . . . the privilege log, it is not possible 

for Peacock to legitimately contest the asserted privilege and for the Court to 

rule intelligently upon whether the claim of privilege should be sustained.”). 

That there can be no adjudication without a privilege log is why the failure to 

submit a privilege log may result in waiver, rather than an adverse 

determination on the merits that the privilege does not apply. See EEOC v. 

It is nonsensical to read the magistrate judge’s order as both ordering the production of 

discovery and also stating that it will do so only after a motion to compel and full briefing.

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BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017); Fed R. Civ. P. 26, 

advisory committee’s note to 1993 amendment. In this particular case, no 

one—not the Commissioners, not the district court, not the majority—know 

whether the discovery the Legislators are withholding contains 

communications shared with third parties outside the sphere of legislative 

activity. Yet this is precisely the determination that the majority claims the 

magistrate judge erroneously made. How the majority knows that the 

withheld discovery was not shared with third parties for non-legislative 

purposes when it too lacks this information is beyond comprehension.

Because it is both obvious from the face of the order itself and a 

necessary conclusion from the procedural rules governing assertions of 

privilege in discovery, it is clear that the order appealed only directs the 

Legislators to produce a privilege log. I disagree with the majority’s 

imagining that there is more. Accordingly, I view the majority’s opinion that 

the magistrate judge’s statements regarding the scope of legislative privilege 

were “overbroad” as an advisory opinion that Article III does not empower 

us to render. Maj. Op. at 11.

I respectfully dissent from Section III of Judge Elrod’s opinion, 

finding appellate jurisdiction, concur in Section IV finding the 

Commissioners have standing, concur in Section IV.A finding that the 

Legislators must submit a privilege log to sustain their assertions of legislative 

privilege, and dissent from Section IV.B’s advisory opinion reversing the 

district court’s “broad pronouncement” about the scope of that privilege. 

Maj. Op. at 12. 

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Stuart Kyle Duncan, Circuit Judge, concurring in part and dissenting 

in part:

While I agree that we have appellate jurisdiction, see Elrod Op. at 4–6, 

I respectfully disagree that the individual Commissioners have standing, see 

id. at 6–10; see also Dennis Op. at 1–2. In the majority’s view, the 

Commissioners are personally injured because eliminating the JMAA will cut 

off their expense accounts. No precedent supports that theory of standing. 

Per diems are perks tethered to public office, not private rights whose loss 

personally injures the officeholder. So, instead of remanding for further 

proceedings in this now-seven-year-old intrastate political squabble, I would 

reverse and render judgment dismissing the Commissioners’ claims.

The Commissioners claim SB 2162 violates the Equal Protection 

Clause by “abolish[ing] the JMAA and thereby terminat[ing] their 

employment as Commissioners on the basis of race.” Am. Compl. ¶ 140. The 

majority decides the Commissioners have standing to press these claims 

based on allegations that they are “entitled to receive a per diem for their 

service and a travel reimbursement that allows them to obtain specialized 

training in airport administration.” Elrod Op. at 7; see Am. Compl. ¶ 142. It 

also suggests the Commissioners are injured by the loss of “status and 

authority” caused by the elimination of the JMAA and, along with it, their 

positions. Elrod Op. at 7. The majority cites no precedent supporting its view 

that these asserted harms qualify as personal injuries to the individual 

Commissioners.1

1 Judge Elrod’s opinion relies mostly on general standing precedents that do 

not address legislators’ standing. See Elrod Op. at 7 (citing Spokeo, Inc. v. Robins, 578 U.S. 

330, 340 (2016)); id. at 8 (citing Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 388 (5th Cir. 

2017)); id. at 9 (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 

167, 170 (2000); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). The only 

cited opinion addressing legislators’ standing is a concurrence in our court’s prior opinion 

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The only case the majority discusses, Raines v. Byrd, 521 U.S. 811 

(1997), undermines its view. See Elrod Op. at 8. Raines teaches that individual 

lawmakers can’t sue to vindicate “a loss of political power” but only a “loss 

of [a] private right.” 521 U.S. at 821. That principle defeats the 

Commissioners’ standing. Each loss they assert is political, not personal. 

They have no “private right” to the perquisites of office. Such benefits exist 

“solely because [the Commissioners] are Members of [the JMAA].” Ibid.

The minute they leave office, the perks end. See ibid. (“If one of the Members 

were to retire tomorrow, he would no longer have a claim; the claim would 

be possessed by his successor instead.”). Their loss “thus runs with the 

[Commissioner’s] seat, a seat which the [Commissioner] hold[s] as trustee 

for his constituents, not as a prerogative of personal power.” Ibid. (cleaned 

up). Translation: Commissioners enjoy these perks only because they are 

public servants, not because they have a private right to expense the City of 

Jackson for a New York Strip or a trip to Vegas.

The majority seeks support in this statement from Raines: “appellees 

do not claim that they have been deprived of something to which they 

personally are entitled—such as their seats as Members of Congress after 

their constituents had elected them.” Elrod Op. at 8 (quoting Raines, 521 U.S. 

at 821). But the majority divorces this statement from its context. Raines was 

discussing Powell v. McCormack, 395 U.S. 486 (1969), where a Congressman 

was allowed to “challenge . . . his exclusion from the House of 

Representatives (and his consequent loss of salary).” Raines, 521 U.S. at 

820–21 (citing Powell, 395 U.S. at 496, 512–14). As Raines explained, there 

in this case. See Elrod Op. at 7 (citing Stallworth v. Bryant, 936 F.3d 224, 232–33 (5th Cir. 

2019) (Higginbotham, J., concurring)). But that non-precedential opinion cites no authority 

for its view that a Commissioner’s loss of “status and authority” as a public official 

qualifies as a personal injury for Article III purposes.

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was standing in Powell only because Congressman Powell had been “singled 

out for specially unfavorable treatment as opposed to other Members.” Id. at 

821. The Court distinguished Powell’s personal harm from a claim of 

“institutional injury, which necessarily damages all Members of Congress 

and both Houses of Congress equally.” Ibid (cleaned up).

The Commissioners’ asserted injuries differ critically from the injury 

in Powell. Congressman Powell was excluded from his seat by a House 

majority after a subcommittee found he had committed financial 

improprieties as a committee chairman. See Powell, 395 U.S. at 489–93. He 

could therefore sue to redress this personal injury to him (and to his 

constituents, who also sued). Id. at 493; see also Raines, 521 U.S. at 820–21. 

By contrast, the Commissioners do not allege they have been singled out for 

“specially unfavorable treatment.” Raines, 521 U.S. at 821. Rather, their 

claimed injury is that the JMAA itself has been eliminated and, along with it, 

their positions. This is what Raines described as an “institutional 

injury . . . which necessarily damages all [Commissioners] equally.” Ibid.; see 

also Kerr v. Hickenlooper, 824 F.3d 1207, 1214 (10th Cir. 2016) (“[I]ndividual 

legislators may not support standing by alleging only an institutional injury.”) 

(citations omitted). The Commissioners can’t circumvent Raines by claiming 

that sunsetting the JMAA zeroes out their expense accounts. Those benefits 

“run with the seat” and so aren’t “something to which [the Commissioners] 

personally are entitled.” Raines, 521 U.S. at 821.

By allowing individual lawmakers standing to sue for an institutional 

injury, the majority puts our circuit out of step with at least three others.2

2 See Yaw v. Del. River Basin Comm’n, 49 F.4th 302, 311 (3d Cir. 2022) 

(“[I]ndividual legislators lack standing to assert institutional injuries belonging to the 

legislature as a whole.”); Maloney v. Murphy, 984 F.3d 50, 64 (D.C. Cir. 2020) (explaining 

that legislators do not have standing for harms that “befell the institution as a whole and all 

legislators collectively”); Kerr, 824 F.3d at 1216 (“An individual legislator certainly retains 

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And this standing misadventure is notably harmful because it lets a federal 

court continue to stick its nose into a political spat. Cf. id. at 819–20 (standing 

should be “especially rigorous” when the merits would require “decid[ing] 

whether an action taken by one of the other two branches of the Federal 

Government was unconstitutional”); Ariz. State Legis. v. Ariz. Indep. Redist. 

Comm’n, 576 U.S. 787, 859 (2015) (Scalia, J., dissenting) (arguing the 

Framers “would be all the more averse to unprecedented judicial meddling by 

federal courts with the branches of their state governments”). Various 

government parties have been fighting over control of the Jackson airport, 

now going on seven years. See Stallworth v. Bryant, 936 F.3d 224, 226–29 (5th 

Cir. 2019). The case has already spawned two appeals, yet it remains mired 

in debates over legislative subpoenas. See id. at 228–29. And while Judge 

Elrod’s opinion correctly fixes one aspect of the district court’s overbroad 

privilege waiver, see Elrod Op. at 11–123

, it sends the case back for more 

squabbling. Instead of doing that, I would hold the individual Commissioners 

are not injured in any judicially cognizable manner, which would go a long 

way toward ending federal involvement in this political dog fight.

I respectfully dissent.

the ability to bring a suit to redress a personal injury, as opposed to an institutional injury.”) 

(citing Raines, 521 U.S. at 824 n.7; Powell, 395 U.S. at 550).

3 I agree with this part of Judge Elrod’s opinion, even though, left to my own 

devices, I would find the legislators had no standing to begin with.

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