United States Court of Appeals

for the Fifth Circuit

No. 19-20752

Audrey K. Miller, 

Plaintiff—Appellant,

versus

Sam Houston State University; Texas State University 

System, 

Defendants—Appellees,

consolidated with

No. 19-20753

Audrey K. Miller, 

Plaintiff—Appellant,

versus

University of Houston System; University of Houston 

Downtown,

Defendants—Appellees.

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2021

Lyle W. Cayce

Clerk

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Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CV-2824

USDC No. 4:15-CV-2927

Before Jolly, Southwick, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

A litigant has the fundamental right to fairness in every proceeding. 

Fairness is upheld by avoiding even the appearance of partiality. See, e.g., 

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). When a judge’s actions 

stand at odds with these basic notions, we must act or suffer the loss of public 

confidence in our judicial system. “[J]ustice must satisfy the appearance of 

justice.” Offutt v. United States, 348 U.S. 11, 14 (1954).

Audrey Miller sued Sam Houston State University (SHSU) and 

Texas State University System (TSUS) under Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000(e) et. seq., and the Equal Pay Act, 29 U.S.C. § 

206(d), alleging sex discrimination, retaliation, and a hostile work 

environment. A week later, Miller filed a separate action against the 

University of Houston Downtown (UHD) and the University of Houston 

System (UHS), also under Title VII, alleging that UHD’s denial of 

employment constituted retaliation.

1

From the outset of these suits, the district judge’s actions evinced a 

prejudgment of Miller’s claims. At the beginning of the Initial Case 

Management Conference, the judge dismissed sua sponte Miller’s claims 

against TSUS and UHS, countenancing no discussion regarding the 

dismissal. Later in the same conference, the judge responded to the parties’

1 There are thirty-seven public universities in Texas; thirty-four universities belong 

to one of six state university systems. SHSU is a component of TSUS, and UHD belongs 

to UHS.

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opposition to consolidating Miller’s two cases by telling Miller’s counsel, “I 

will get credit for closing two cases when I crush you. . . . How will that look on your 

record?” 

And things went downhill from there. The court summarily denied 

Miller’s subsequent motion for reconsideration, denied Miller’s repeated 

requests for leave to take discovery (including depositions of material 

witnesses), and eventually granted summary judgment in favor of SHSU and 

UHD, dismissing all claims. Miller now appeals the district court’s rulings

and asks for her cases to be reassigned on remand. Mindful of the 

fundamental right to fairness in every proceeding—both in fact, and in 

appearance, we REVERSE, REMAND, and direct that these cases be

REASSIGNED to a new district judge for further proceedings.

I.

A.

Miller joined SHSU as a tenure-track Assistant Professor of 

Psychology in the University’s Clinical Psychology Doctoral Program 

(“Clindoc Program”) in the Department of Psychology and Philosophy in 

August 2007. In this position, Miller supervised students in the Clindoc 

Program, taught practicum courses, and served on students’ dissertation and 

thesis committees. According to SHSU, Miller was “lacking in collaborative 

and attentive generosity towards her colleagues.” She complained about her 

heavy workload, which she believed to be disproportionate compared to that 

of her colleagues. Miller also disagreed with other members of the faculty 

while serving on dissertation and thesis committees. She was removed from 

one committee due to her inflexibility and voluntarily offered to step down 

from another due to conflicts with other committee members. Miller 

contends these disagreements were retaliatory because of her sex and the 

complaints that she raised concerning her clinical workload.

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Despite these issues, Miller applied for tenure at SHSU in late 2012. 

But her reviewers recommended that Miller’s tenure and promotion be 

denied due to her lack of collegiality. SHSU informed Miller of its decision 

to deny tenure on March 27, 2013.

Thereafter, Miller filed charges of sex discrimination and retaliation 

with the Equal Employment Opportunity Commission (EEOC) and the

Texas Workforce Commission. She then utilized the Texas Public 

Information Act to obtain voluminous documentation from SHSU. A few 

months later, SHSU denied Miller a merit-based salary increase for the 2013-

2014 academic year. Miller filed a formal grievance with SHSU, based on the 

same allegations as her EEOC charge (i.e., that her tenure decision was 

adversely affected by sex discrimination and retaliation). Miller’s

employment with SHSU ended on May 31, 2014.

B.

After learning of her tenure denial at SHSU, Miller applied for one of 

three open faculty positions at UHD. On March 17, 2014, she interviewed

with the UHD search committee, as well as Department Chair Jeffery 

Jackson, Dean DoVeanna Fulton, and Provost Edward Hugetz. During the 

interview, search committee members asked Miller why SHSU denied her

tenure. Miller responded that she “believed [she] had been denied tenure 

because [she] was a woman and because [she] had raised concerns about the

mistreatment of women in the department at SHSU prior to applying for 

tenure.” Following the interview, the committee rated Miller as the second 

highest candidate for a position.

On April 4, 2014, the UHD search chair emailed Department Chair 

Jackson and Dean Fulton and stated that the search committee was interested 

in extending offers to three candidates, including Miller. That same day, the 

search chair asked Miller if she would allow UHD to contact her SHSU 

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Department Chair, Christopher Wilson. Miller obliged but advised the 

search chair that Wilson was one of the individuals about whom she had 

complained at SHSU. 

On April 7, Department Chair Jackson sent an email to the search 

chair. He stated that while Dean Fulton seemed agreeable to the 

committee’s recommendations, Fulton wanted to follow up with Miller’s 

supervisors at SHSU. The search chair responded that she was “worried 

[SHSU Department Chair Wilson would] have to be very careful [] 

discussing [Miller’s] tenure denial because of the legal issues we [have] 

discussed.” Later that day, Jackson called Wilson to inquire into SHSU’s

decision to deny Miller tenure and promotion.

What was said during the phone call is nowhere in the record. But 

after Department Chair Jackson’s call with Department Chair Wilson, UHD

reversed course from the search committee’s previous recommendation,

deciding not to extend Miller an offer of employment. On April 29, Miller 

emailed the UHD search chair regarding the status of her UHD application.

The search chair responded that the position had been filled: “The final 

employment decision was complicated and involved the search committee, 

department chair, dean, and provost.” 

In the end, UHD filled all three open positions with candidates who 

scored lower on UHD’s hiring metrics than Miller. According to Dean 

Fulton, UHD’s decision not to hire Miller was “based entirely on [] concerns 

regarding [] Miller’s teaching and service due to her tenure denial at SHSU.”

The dean further stated that she was never “made aware that [] Miller had 

filed a charge of discrimination or other complaint against SHSU with any 

federal or state authorities.” Miller later filed complaints against UHD with 

the EEOC and the Texas Workforce Commission.

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C.

On September 28, 2015, Miller filed suit against SHSU and TSUS in 

the Southern District of Texas. On October 6, Miller filed a separate lawsuit 

against UHD and UHS in the same court. The district court issued an order 

to handle the suits jointly, but they were not formally consolidated.

From the start, the district court effectively stifled Miller’s attempts 

at discovery. The day after Millerfiled suit, the district court issued an Order 

of Conference in each action that limited discovery. The (identical) orders

foreclosed the parties from propounding written discovery or noticing 

depositions “without court approval.” The district court then issued an 

Order for Disclosure that mandated the parties’ exchange of certain relevant 

documents in each case, including Miller’s performance and personnel 

records, her pay records, names of relevant parties, and organizational charts. 

On the surface, the district court’s initial discovery management orders were

perhaps unremarkable. But the court did not stop there, as we discuss in 

greater detail below.

On January 25, 2016, the parties in both cases first met at a joint Initial

Case Management Conference. At the outset, and without any prior notice, 

the district judge stated: 

THE COURT: [Miller], we’ve got four parties instead of 

the two.

[Miller’s counsel]: Oh. The –

THE COURT: You sued the System[s] and the 

institution[s]. So, pick any two you want. 

I don’t care. 

[Miller’s counsel]: I am going to go with the Universities.

THE COURT: Is that right? 

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[Opposing counsel]: Yes, Your Honor. To be clear, you know, 

that was an issue that we were going to 

hope to resolve by –

THE COURT: I just did. 

[Opposing counsel]: Yes, Your Honor.

THE COURT: We’ll dismiss the Systems.

[Opposing counsel]: Thank you, Your Honor.

THE COURT: Systems don’t do anything. They hire 

large staffs and go around and make life 

difficult for the actual institutions 

themselves. It’s in their charter; annoy 

their workers.

As the conference continued, the district judge made several other offkey remarks, such as his thoughts concerning Miller’s behavior: “Now, to be 

candid with you, . . . there is nothing that [Miller] didn’t complain about. 

Anything anybody did for two and a half years, three years, was all for some 

ulterior motive.” The judge also lumped Miller’s claims in with 

preconceived notions from previous cases involving professors: “As near as 

I can tell, [Miller’s] only complaint here is likely she was paid less but that 

she didn’t get tenure.” He then supported this statement by revealing his

familiarity with Title VII cases: “I have never thought about it, but I have 

had more tenure decisions than you can imagine working here. You wouldn’t 

think professors were litigious, but apparently they are.”

The judge made other remarks that signaled a predisposition against 

Miller’s claims. When Miller requested additional discovery, including the 

opportunity to take depositions, the district judge denied her request, noting 

that it was “too argumentative” and extensive. Finally, as the initial 

conference ended, the judge asked the parties if the cases should be 

consolidated. Contrary to the judge’s apparent preference, the parties 

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unanimously requested that the court keep the cases separate. The district 

judge replied to Miller’s counsel, “All right. I will get credit for closing two 

cases when I crush you.” Miller’s counsel attempted to respond, but the 

judge interjected: “How will that look on your record?”

The day after the Initial Case Management Conference, the district 

court formally dismissed TSUS and UHS with prejudice. The court did not 

allow Miller to amend her complaints or otherwise respond prior to 

dismissing TSUS and UHS. Miller moved for reconsideration, arguing that 

the Systems were “responsible for managing and controlling their 

Universities.”2 The next day, before TSUS or UHS responded, the court 

denied Miller’s motion, reasoning that Miller failed to supply “objective 

facts” in her complaint about the Systems’ actions. 

On April 13, 2016, Miller filed opposed motions for discovery. Miller 

sought, inter alia, performance records concerning tenure-track and tenured 

faculty members in the SHSU psychology department, pay records, and work 

assignments (i.e., course loads). Miller also sought applications and related 

communications from UHD regarding its employment decisions. The

district court denied Miller’s motions the following day, without response 

from SHSU or UHD.

The district court held a pretrial conference on May 4, 2016. There, 

the parties discussed the limited discovery that had been exchanged. The

district judge asked the Universities’ counsel if he had taken Miller’s 

deposition and then permitted counsel to notice the deposition. Miller’s 

counsel then asked, “May we take depositions as well?” The judge

2 Miller only filed her motion for reconsideration in her action against SHSU and 

TSUS. However, the motion addressed both TSUS and UHS, and the district court ruled 

in regard to both parties. For the sake of simplicity, we likewise treat the motion for 

reconsideration as pertaining to Miller’s claims against both TSUS and UHS.

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responded, “No.” Afterwards, the court entered a Management Order that 

stated that SHSU and UHD “may depose Miller in Judge Hughes’s Jury 

Room.” 

On May 12, Miller again filed opposed motions for leave to propound 

discovery, renewing her “request that in the interest of efficiency and 

economy, the court order the full scope of discovery that has been specifically 

requested by Plaintiff.” Miller attached extensive discovery requests to the 

motions and stated that she had also “submitted the attached discovery 

requests . . . in document form during the last pretrial conference . . . held on 

May 4, 2016.”

TSUS and UHD deposed Miller on May 25, while Miller’s motions

remained pending. The district judge actually attended parts of the 

deposition and participated. At one point, the judge admonished Miller:

THE COURT: If you’re unhappy with the rulings I’ve 

made about discovery, that’s fine. Free 

Country. This is not a place to discuss

your feelings. It’s a place to answer 

[opposing counsel’s] questions. You have 

sued his client – their – their clients’

people, and they have a right to know 

exactly why.

Later, the judge again interjected: 

THE COURT: Ma’am, you’re not to lecture the State 

of Texas on the law. [Your counsel] and I 

will do that. It is not important to your 

case what you think about what nine old 

people on the Potomac River talk about 

something. We’re here to find out what 

you actually know . . . about the facts. So, 

please, do not burden the record with side 

trips. 

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After the deposition, the district court held another hearing. Within

the first minute of that hearing, the district judge queried TSUS and UHD’s 

counsel: “So are you going to move for summary judgment?”—clearly

implying that they should. And later, as Miller’s counsel sought to explain 

why he believed that certain data provided by SHSU was inaccurate, the 

judge responded, “I think you’re making that up.” 

Both SHSU and UHD moved for summary judgment in June 2016. 

By then, the court had yet to allow Miller to take any depositions. In response

to the summary judgment motions, Miller requested a Rule 56(d) 

continuance, asking the court to grant discovery beyond the “general 

information provided by the Defendant[s]” under the court’s original 

disclosure order. Miller also moved to strike certain declarations in each 

case. The court denied both Miller’s Rule 56(d) discovery requests and her

May 12 motions for leave to propound discovery.

On March 29, 2017, the district court held oral argument on the 

Universities’ summary judgment motions. After the hearing (and after 

summary judgment briefing was complete), the court entered a Management 

Order that allowed Miller to depose Dean Fulton, but only “for two hours, 

at most.” 

Following Dean Fulton’s deposition, Miller again moved for leave to 

conduct additional depositionsin the UHD action. She requested permission 

to depose Department Chair Jackson and the UHD search chair and several 

search committee members. In support of her motion, Miller asserted that 

it [wa]s increasingly clear that Defendants have avoided 

testimony about the contents of the telephone reference from 

Wilson of SHSU, not only because of its obvious relevance in 

this case but also in an attempt to protect SHSU from liability 

for its own retaliatory actions. [Miller] should have an 

opportunity to depose Wilson of SHSU in this case.

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(emphasis in original). The district court again denied Miller’s request, and 

on September 30, 2019, the court granted TSUS’s and UHD’s motions for 

summary judgment. Miller filed notices of appeal in both cases on October 

30, 2019.

II.

On appeal, Miller raises the following issues: (A) whether the district 

court erred by dismissing sua sponte her claims against TSUS and UHS; (B) 

whether the district court erred by denying her motion for reconsideration of 

that ruling; (C) whether the district court abused its discretion by denying 

her repeated discovery requests; and (D) whether the cases should be 

reassigned on remand. We address each issue in turn.

A.

Miller first assertsthat the district court erred by dismissing sua sponte

her claims against TSUS and UHS. She contends that the court failed to 

provide her notice, an opportunity to respond, or the opportunity to allege 

her best case before dismissing the claims with prejudice. TSUS and UHS

counter that the dismissal was fair. We review de novo. Carroll v. Fort James 

Corp., 470 F.3d 1171, 1173 (5th Cir. 2006).

A district court may dismiss a complaint for failure to state a claim on 

its own motion “as long as the procedure is fair.” Davoodi v. Austin Indep. 

Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (internal quotation marks and 

citation omitted). While there is no bright-line rule, generally “fairness in 

this context requires both notice of the court’s intention and an opportunity 

to respond.” Id. (citing Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 

(5th Cir. 2007)); see also Gaffney v. State Farm Fire & Cas. Co., 294 F. App’x 

975, 977 (5th Cir. 2008). But “[w]e do not always require notice prior to sua 

sponte dismissal for failure to state a claim, as long as the plaintiff has alleged 

[her] best case.” Lozano, 489 F.3d at 643 (internal quotation marks and 

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citation omitted). We have reasoned that “[a]t some point a court must 

decide that a plaintiff has had fair opportunity to make [her] case[, and] if, 

after that time, a cause of action has not been established, the court should 

finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 

1986).

We have not ruled on a case with facts squarely aligned to the ones 

here, but we glean insight from our prior decisions. In Carroll, the defendant 

moved to dismiss a fraud claim under Rule 12(b)(6). Carroll, 470 F.3d at 1173. 

Although there were additional tort claims beyond the scope of the 

defendant’s motion, the district court dismissed the case in its entirety 

without providing any specific reference to the remaining claims. Id. On 

appeal, this court found that the district court failed to provide notice or an 

opportunity to respond as to the tort claims pled in the plaintiff’s complaint,

and thus, the district court’s dismissal “did not provide adequate fairness” 

to the plaintiff. Id. at 1177. 

Gaffney, though nonprecedential, is likewise analogous. There, the 

plaintiffs sought damages against their insurer for failing to tender coverage 

payments. Gaffney, 294 F. App’x at 976. The plaintiffs later moved to 

transfer venue, continue the trial, and consolidate their case with a related 

case. Id. But after considering the motion, the court dismissed sua sponte the 

plaintiffs’ claims, finding the plaintiffs had no cause of action. Id. As in

Carroll, we held on appeal that the district court denied the plaintiffs both 

notice “that it might sua sponte dismiss their case and an opportunity to 

respond.” Id. at 977. We also noted that “[t]here [wa]s no evidence in the 

record to suggest that the district court notified any party that it was 

considering dismissal, neither party briefed the issue, and [p]laintiffs were 

not given an opportunity to amend their complaint to cure any deficiencies

that the district court thought warranted dismissal.” Id. 

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Finally, in Davoodi, the plaintiff filed suit in state court against his 

former employer, asserting claims of discrimination, retaliation, and 

intentional infliction of emotional distress. Davoodi, 755 F.3d at 308. 

Following removal to federal court, the defendant filed a partial motion to 

dismiss, seeking to dismiss all claims but one. Id. at 309. The district court 

granted the defendant’s partial motion to dismiss and then dismissed sua 

sponte the plaintiff’s remaining claim. Id. We reversed the district court’s 

dismissal because the plaintiff “had no notice or opportunity to be heard 

before the district court issued its order of dismissal.” Id. at 310.

Whether Miller received proper notice under the circumstances here

is debatable. Similar to Carroll and Davoodi, nothing in the record suggests 

the district court notified the parties that it was considering dismissal of 

Miller’s claims against TSUS or UHS before the court raised the issue at the 

beginning of the Initial Case Management Conference. To the contrary, as 

the conference began, the district judge simply demanded that Miller “pick 

any two [of the four parties] you want. I don’t care.” Once she did so, the 

court ruled on the spot: “We’ll dismiss the Systems.” 

Even assuming that exchange constituted notice to Miller prior to the 

Systems’ dismissal, the district court failed to give Miller an adequate 

opportunity to respond to the court’s intention to dismiss her claims. The

district court dismissed Miller’s claims at the Initial Case Management 

Conference and memorialized the dismissal in an order entered a day later.

The record provides no indication that any party briefed the issue until Miller 

moved for reconsideration. It is also notable that the district court dismissed 

TSUS and UHS with prejudice, so Miller was likewise not given any

opportunity to amend her complaint to cure the deficiencies that ostensibly 

warranted dismissal of the Systems. “Dismissing an action after giving the 

plaintiff only one opportunity to state [her] case is ordinarily unjustified.” 

Jacquez, 801 F.2d at 792; see also Gaffney, 294 F. App’x at 977. 

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Taking all of this into consideration, the district court failed to give 

Miller an adequate opportunity to respond before it dismissed her claims 

against TSUS and UHS with prejudice; accordingly, the court erred in its sua

sponte dismissal of TSUS and UHS.

3

B.

It follows that the district court likewise erred when it denied Miller’s 

motion for reconsideration. So we need not tarry long on this issue, except 

to underscore a couple points. The first, succinctly, is that it was not a “fair 

procedure,” as required for a sua sponte dismissal, for the court to force Miller 

to resort to a motion to reconsider—as a proxy for arguments she might have 

made before dismissal—as her only avenue to oppose the dismissal of her 

claims. See Carroll, 470 F.3d at 1177; see also Gaffney, 294 F. App’x at 977. 

The second, less succinctly, is that the points raised in Miller’s 

motion for reconsideration illuminate why dismissal of the Systems was 

premature under the fact-specific inquiry used to evaluate employment 

relationships, at least given the scant record before us. In her motion, Miller 

alleged that the Systems were her “employers” because they were 

“responsible for the control and management of their Universities,” 

including personnel decisions and the granting of tenure. This court applies 

a two-step process for determining whether a defendant is an “employer” 

under Title VII. E.g., Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118 

n.2 (5th Cir. 1993).

4 Relevant here, one component of this test is “[t]he right 

to control [the] employee’s conduct.” Id. at 119. And when examining the 

3 We also reject SHSU’s and UHD’s argument that Miller alleged her “best case” 

because she was not given a chance to amend her complaint. Jacquez, 801 F.2d at 792. 

4 Miller’s claim against UHS (and UHD) is premised on “retaliation, in violation 

of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a),” as a prospective employer; however, 

the relevant test for determining whether a defendant is an “employer” is the same.

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control component, we have focused on whether the alleged employer has 

the right to hire, fire, supervise, and set the work schedule of the employee. 

Id. Another component focuses on the “economic realities” of the 

relationship, including “whether the alleged employer paid the employee’s 

salary, withheld taxes, provided benefits, and set the terms and conditions of 

employment.” Id.

This test is “necessarily a fact-specific inquiry and is therefore 

typically applied in a summary judgment context, in which a court is 

permitted to go beyond the pleadings and examine the state law and the 

evidence relevant to the employment relationship.” Muhammad v. Dallas 

Cnty. Cmty. Supervision & Corrs. Dept., 479 F.3d 377, 382 (5th Cir. 2007); cf. 

Weeks v. Tex. A&M Univ. Sys. – at Galveston, 762 F. App’x 203, 204–05 (5th 

Cir. 2019) (finding, at summary judgment stage, that plaintiff was not 

employed by the University System because “[i]t lacked the right to hire, fire, 

supervise, and set [his] work schedule; [and] it therefore could not be said to 

have the right to control [the plaintiff’s] conduct”). 

By contrast, here, the district court’s initial dismissal of TSUS and 

UHS apparently rested only on the district judge’s own expressed view that 

“Systems don’t do anything.” The court’s denial of Miller’s motion for 

reconsideration, the day after she filed it, squelched any further development 

of Miller’s allegations and arguments to the contrary (and any opposition to 

Miller’s motion the Systems might have interposed). While there are cases 

in which a Rule 12(b)(6) dismissal may be appropriate, the district court’s 

premature ruling here was “based on an erroneous view of the law or a clearly 

erroneous assessment of the evidence,” Austin v. Kroger Tex., L.P., 864 F.3d 

326, 329 (5th Cir. 2017), such that it was an abuse of discretion. 

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C.

After its dismissal of TSUS and UHS and its denial of Miller’s motion 

for reconsideration, the district court repeatedly denied Miller’s requests for 

discovery, including her requests to depose witnesses with knowledge 

material to her claims. Miller asserts the district court abused its discretion 

in doing so. Based on our review of the record, we agree. 

We review a district court’s discovery rulings for an abuse of 

discretion. Vantage Deepwater Co. v. Petrobras Am., Inc., 966 F.3d 361, 373 

(5th Cir. 2020). Generally, broad discretion is afforded to the district court 

when deciding discovery matters. Crosby v. La. Health Serv. & Indem. Co., 

647 F.3d 258, 261 (5th Cir. 2011). We reverse “only if [the decision] affected 

a party’s substantial rights.” N. Cypress Med. Ctr. Operating Co. v. Aetna Life 

Ins. Co., 898 F.3d 461, 476 (5th Cir. 2018). Substantial rights are affected if 

the district court’s decision was “arbitrary or clearly unreasonable.” Fielding 

v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir. 2005) (citation 

omitted). 

Under Federal Rule of Civil Procedure 26(b), “[p]arties may obtain 

discovery regarding any nonprivileged matter that is relevant to any party’s 

claim or defense or proportional to the needs of the case . . . [.]” This 

standard is broad, especially when viewed in the context of Title VII. See 

Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983) (“The imposition 

of unnecessary limitations on discovery is especially frowned upon in Title 

VII cases.”).

In support of her position, Miller refers us to McCoy v. Energy XXI 

GOM, LLC, 695 F. App’x 750 (5th Cir. 2017). In that case, the same district 

judge imposed substantially similar discovery restrictions to those imposed 

here. Id. at 753. Specifically, the district judge denied almost all requests for 

discovery and “permitted only the deposition of [the plaintiff]” and “the 

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disclosure by the defendants of certain documents pertaining to the specific 

[object] at issue,” certain photographs, and a video. Id. On appeal, we

reversed and remanded the case on summary judgment grounds, finding 

genuine issues of material fact existed, even with the limited discovery that 

had been permitted. Id. at 758. But we also noted that “[t]he district court 

abused its discretion in refusing to allow [the plaintiff] to conduct sufficient 

discovery . . . to support the allegations he ha[d] fairly raised[.]” Id. at 759.

We have a sense of déjá vu. The district court’s discovery restrictions 

in the instant cases are strikingly similar to those in McCoy. And “[a]lthough 

the district court is customarily accorded wide discretion in handling 

discovery matters, we will not uphold a ruling which has failed to adhere to 

the liberal spirit of the Rules.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 

1991). As in McCoy, the district judge here permitted only Miller’s 

deposition to be taken before summary judgment briefing and argument—

and then actually participated in the deposition. By contrast, the court 

repeatedly denied Miller the opportunity to depose any witnesses, relenting 

only after summary judgment briefing was complete to allow Miller one 

deposition, of UHD’s Dean Fulton. And that deposition was limited to “two

hours, at most.”

To put it simply, the court’s discovery restrictions suffocated any 

chance for Miller fairly to present her claims. While the Universities offer 

that Miller was not prejudiced because she had already received voluminous 

documentation from a pre-suit Texas Public Information Act request, we are 

not persuaded given the district court’s inflexible denials of both her written 

discovery requests and her requests to take depositions. Miller requested 

discovery on multiple occasions and was denied, almost instantly, at every 

turn: January 25, 2016 (denied same day); April 13, 2016 (denied April 14, 

2016); May 4, 2016 (denied same day); May 12, 2016 (denied June 30, 2016); 

and June 2, 2017 (denied via summary judgment September 30, 2019). Even 

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given the deference afforded to district courts when deciding discovery 

matters, the restrictions here “failed to adhere to the liberal spirit of the 

Rules,” Coughlin, 946 F.2d at 1159, to the extent that they were “arbitrary or 

clearly unreasonable.” Fielding, 415 F.3d at 428 (citation omitted). Although

we are never quick to second-guess a district court’s management of 

discovery, we must do so here.

A final example demonstrates why. In her respective actions, Miller

sought to depose SHSU’s Department Chair Wilson and UHD’s 

Department Chair Jackson, two witnesses who fairly likely have knowledge 

of facts highly relevant to Miller’s claims in both cases. Among other 

interactions during UHD’s hiring process, Jackson telephoned Wilson about 

Miller and purportedly discussed the reasons SHSU denied Miller tenure. 

After that call, UHD decided not to hire Miller, though she had been 

recommended for employment before the call. Because the district court 

denied Miller’s repeated requests to depose these witnesses, the record is 

silent about this telephone call. Yet it is plain that Miller’s claims may well 

hinge on what was said during the call. 

“When a party is not given a full and fair opportunity to discover 

information essential to its opposition to summary judgment, the limitation 

on discovery is reversible error.” McCoy, 695 F. App’x at 759 (quoting Brown 

v. Miss. Valley State Univ., 311 F.3d 328, 333 (5th Cir. 2002)). Miller has

demonstrated that the district court’s almost blanket denials of her discovery 

requests affected her substantial rights, including her ability to respond to the 

Universities’ motions for summary judgment. Because the district court 

abused its discretion in this regard, we reverse the district court’s summary 

judgments and remand these cases to allow Miller the opportunity to obtain 

discovery “relevant to any party’s claim or defense or proportional to the 

needs of the case.” Fed. R. Civ. P. 26(b).

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D. 

Lastly, Miller asks this court to reassign her cases. We find her 

request warranted.

The power to reassign “is an extraordinary one” and “is rarely 

invoked.” Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997) (internal 

quotation marks and citation omitted). “[R]eassignments should be made 

infrequently and with great reluctance.” United States v. Winters, 174 F.3d 

478, 487 (5th Cir. 1999) (internal quotation marks and citation omitted). 

In determining whether reassignment is proper, this court has applied 

two tests—one more lenient than the other. The more stringent test 

considers the following:

(1) whether the original judge would reasonably be expected 

upon remand to have substantial difficulty in putting out of his 

mind or her mind previously-expressed views or findings 

determined to be erroneous or based on evidence that must be 

rejected, (2) whether reassignment is advisable to preserve the 

appearance of justice, and (3) whether reassignment would 

entail waste and duplication out of proportion to any gain in 

preserving the appearance of fairness.

In re DaimlerChrysler Corp., 294 F.3d 697, 700–01 (5th Cir. 2002) (citations 

omitted). The more lenient test looks at whether the judge’s role “might 

reasonably cause an objective observer to question [the judge’s] 

impartiality.” Id. at 701 (alteration in original) (quoting United States v. 

Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995)). Reassignment of 

Miller’s cases is appropriate under either test.

Here, the district judge’s conduct from the outset of Miller’s cases 

“might[, at the least,] reasonably cause an objective observer to question [the 

judge’s] impartiality.” Id. Moreover, the cumulative weight of both 

prejudicial comments and peremptory rulings by the district judge leads us 

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to conclude that “the original judge would reasonably be expected upon 

remand to have substantial difficulty in putting out of his mind . . . 

previously-expressed views . . . [and that] reassignment is advisable to 

preserve the appearance of justice[.]” Id. at 700–01. Finally, we do not 

believe reassignment would disrupt judicial efficiency, particularly because 

full discovery has not yet occurred in either of Miller’s actions. See, e.g., 

Johnson, 120 F.3d at 1333 (reassigning case on remand after the completion 

of a jury trial).

III.

Miller, like every litigant, is entitled to a full and fair opportunity to 

make her case in a fair and impartial forum. See United States v. Jordan, 49 

F.3d 153, 155 (5th Cir. 1995). Beyond that, “fundamental to the judiciary is 

the public’s confidence in the impartiality of our judges and the proceedings 

over which they preside.” Id. “[J]ustice must satisfy the appearance of 

justice.” Offutt, 348 U.S. at 14.

We REVERSE the district court’s judgments, including itssua sponte 

Rule 12(b)(6) dismissal of TSUS and UHS and summary judgment in favor 

of SHSU and UHD, and REMAND for further proceedings. On remand, 

we further direct the Chief Judge of the Southern District of Texas to 

REASSIGN these cases.

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