     Case: 11-30936        Document: 00512203396         Page: 1    Date Filed: 04/09/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 9, 2013

                                       No. 11-30936                        Lyle W. Cayce
                                                                                Clerk

HORNBECK OFFSHORE SERVICES, L.L.C.; BEE MAR - WORKER BEE,
L.L.C.; NORTH AMERICAN FABRICATORS, L.L.C.; BEE MAR, L.L.C.;
OFFSHORE SUPPORT SERVICES, L.L.C.; ET AL,

                                                   Plaintiffs-Appellees
v.

KENNETH SALAZAR, SECRETARY, DEPARTMENT OF INTERIOR, also
known as Ken Salazar; UNITED STATES DEPARTMENT OF INTERIOR;
BUREAU OF SAFETY AND ENVIRONMENTAL ENFORCEMENT;
MICHAEL R. BROMWICH, In His Official Capacity as Director, Bureau of
Safety and Environmental Enforcement,

                                                   Defendants-Appellants



                    Appeal from the United States District Court
                       for the Eastern District of Louisiana


Before WIENER, ELROD and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The opinion filed in this case on November 27, 2012,1 is WITHDRAWN.
      This case arises from the 2010 Deepwater Horizon accident in the Gulf of
Mexico. An explosion killed 11 workers, caused the drilling platform to sink, and
resulted in an uncontrolled, lengthy and massive release of oil. At Presidential



      1
          Hornbeck Offshore Services, L.L.C. v. Salazar, 701 F.3d 810 (5th Cir. 2012).
    Case: 11-30936      Document: 00512203396      Page: 2    Date Filed: 04/09/2013



                                   No. 11-30936

direction, those events prompted the Department of the Interior to prohibit all
new and existing oil and gas drilling operations on the Outer Continental Shelf
for six months. The district court preliminarily enjoined enforcement of the
moratorium. The single issue on appeal is whether Interior’s subsequent actions
violated a specific provision of the court’s injunction, justifying a finding of civil
contempt. The district court was certainly correct that Interior immediately took
steps to avoid the effect of the injunction, but we conclude none of those actions
violated the court’s order. We REVERSE.
                  FACTUAL AND PROCEDURAL HISTORY
      The Deepwater Horizon tragedy occurred on April 20, 2010, as the
Transocean drilling crew was preparing for a temporary abandonment of BP’s
discovery-well 52 miles from shore in almost 5,000 feet of water in the Gulf of
Mexico. The explosion and fire caused the platform to sink two days later. For
almost three months, oil gushed from the wellbore in the sea floor.
      On April 30, the President ordered Secretary of the Interior Ken Salazar
to review the event and, within 30 days, to report on “what, if any, additional
precautions and technologies should be required to improve the safety of oil and
gas exploration and production operations on the outer continental shelf.” That
same day, with Order No. 3298, the Secretary established an Outer Continental
Shelf Oversight Board.
      About a week later, the Secretary announced that “as a result of the
Deepwater Horizon explosion and spill, beginning April 20 – the date of the
explosion – no applications for drilling permits [would] go forward for any new
offshore drilling activity” until his report to the President. That report –
Increased Safety Measures for Energy Development on the Outer Continental
Shelf – was released on May 27. In addition to a variety of recommendations
calling for new studies, regulations, and inspections, the Safety Report
recommended (1) “a six-month moratorium on permits for new wells being

                                          2
    Case: 11-30936     Document: 00512203396      Page: 3    Date Filed: 04/09/2013



                                  No. 11-30936
drilled using floating rigs” and (2) “an immediate halt to drilling operations on
the 33 permitted wells that [were] currently being drilled using floating rigs in
the Gulf of Mexico.” This recommendation of a six-month moratorium appeared
in the Executive Summary but not in the body of the Safety Report.
      The Safety Report stated that its recommendations had “been peer-
reviewed by seven experts identified by the National Academy of Engineering.”
As later became known, five of those experts never reviewed or agreed to the six-
month moratorium. Although no wrongdoing was attributed to Interior, an
Office of Inspector General report cited by the district court found that after peer
review, White House officials had inappropriately modified the report.
      On May 28, 2010, the day after the Safety Report’s release, the Secretary
issued what is referred to as the “May Directive.” It stated that based on the
      report to the President, and further evaluation of the issue, [the
      Secretary] find[s] at this time and under current conditions that
      offshore drilling of new deepwater wells poses an unacceptable
      threat of serious and irreparable harm to wildlife and the marine,
      coastal, and human environment as that is specified in 30 C.F.R.
      250.172(b).
      ...
      [The Secretary also] direct[s] a six month suspension of all pending,
      current, or approved offshore drilling operations of new deepwater
      wells in the Gulf of Mexico and the Pacific regions. . . . For those
      operators who are currently drilling new deepwater wells, they shall
      halt drilling activity . . . . [and] the [Mineral Management Service
      (“MMS”)] shall not process any new applications for permits to drill
      consistent with this directive.
      Interior executed this directive by issuing a general Notice to Lessees and
Operators of Federal Oil and Gas Leases (“NTL No. 2010-N04” or “Notice to
Lessees”), effective May 30, which explained that MMS would not consider any
new drilling applications for six months in “deepwater,” defined as depths
greater than 500 feet. There were roughly 4,500 active leases in the Gulf’s
deepwater at the time. MMS also transmitted individual letters to the 33

                                         3
    Case: 11-30936     Document: 00512203396     Page: 4   Date Filed: 04/09/2013



                                  No. 11-30936
operators of permitted wells that were being drilled at the time, providing
notification that their activities were temporarily suspended “consistent with the
Secretarial Directive and Notice to Lessees.”
      Hornbeck Offshore owns and operates a fleet of vessels that support
deepwater exploration. It had contracts with nearly all of the operators of the
33 wells that were being drilled. Hornbeck and about 40 other companies
involved in oil and gas exploration and production, filed suit on June 7 seeking
declaratory and injunctive relief. The complaint alleged that the May Directive
and the Notice to Lessees were not adequately explained and justified in
violation of the Administrative Procedures Act (“APA”), and that in issuing the
Directive and the Notice the Secretary exceeded his authority under the Outer
Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1332.
      Finding only the APA to be pertinent, and not the citizen-suit provision of
the OCSLA, on June 22 the district court granted Hornbeck the preliminary
injunction at the center of this case. That injunction ordered that Interior,
MMS, and
      their servants, agents, successor agencies and employees, and all
      persons in active concert of participation with them, who receive
      actual Notice of this Preliminary injunction [were] immediately
      prohibited from enforcing the Moratorium, entitled “Suspension of
      Outer Continental Shelf (OCS) Drilling of New Deepwater Wells”
      dated May 28, 2010, and NTL No. 2010-N04 seeking
      implementation of the Moratorium, as applied to all drilling on the
      OCS in water at depths greater than 500 feet.
The Secretary issued a press release responding to the injunction that day,
stating that “[t]he decision to impose a moratorium on deepwater drilling was
and is the right decision” and that the government would appeal the ruling to
the Fifth Circuit. He concluded the release by announcing that on the basis of
“ever-growing evidence, I will issue a new order in the coming days that




                                        4
    Case: 11-30936     Document: 00512203396      Page: 5   Date Filed: 04/09/2013



                                  No. 11-30936
eliminates any doubt that a moratorium is needed, appropriate, and within our
authorities.”
      Simultaneously, Interior took some steps to comply with the injunction.
Interior again sent individually addressed letters to the operators of the 33 wells
on which production was to stop, explaining that neither the Notice to Lessees
“nor the order directing a suspension of operations [the May Directive] has legal
effect on your operations at this time.” In contrast to its actions in imposing the
moratorium, though, Interior did not notify the industry-at-large, namely the
operators and lease holders not currently drilling.
      A letter bearing the subject line “Immediate Prohibition from Enforcing
the Moratorium on Drilling New Deepwater Wells” went to all Interior
employees on June 23. It excerpted the district court’s order and explained that
employees were “not to take any action to enforce the Moratorium issued on May
28, 2010, or to enforce NTL No. 2010-N04” until the Secretary gave additional
orders. Also on that day, the Secretary appeared before the United States
Senate Subcommittee on Interior, Environment, and Related Agencies. Though
his scheduled topic was bureaucratic reorganizations affecting MMS, the
Secretary made several comments about the moratorium that bear on this
litigation. We will discuss those below.
      Interior immediately appealed the injunction order to this court. It also
filed a motion for a stay of the injunction. Interior noted in its filing that it
intended to issue a new, similar moratorium. A divided panel of our court
denied the stay request without prejudice to the Secretary’s “right to apply for
emergency relief if he [could] show that drilling activity by deepwater rigs has
commenced or [was] about to commence.” Four days after that ruling, on July
12, 2010, Interior rescinded the May Directive.         A “July Directive” was
substituted. Without doubt, the new suspension directive was the same “in
scope and substance.” The difference was that it contained a more thorough

                                        5
    Case: 11-30936     Document: 00512203396     Page: 6    Date Filed: 04/09/2013



                                  No. 11-30936
explanation of reasons and referred to more voluminous evidentiary support.
Interior returned to this court that day, arguing that we should vacate the
district court’s June 22 injunction of the May Directive as moot. We ruled that
although the Secretary had “asserted substantial reasons suggesting mootness,”
our record was inadequate to decide the issue. A limited remand was ordered
for the district court to consider the issue of mootness.
      On remand, the district court held that the suit was not moot:
      Because this Court has determined that the process leading to the
      first moratorium lacks probity; because this Court has determined
      that no rational nexus exists between the fact of the tragic
      Deepwater Horizon blowout and placing an attainder of universal
      culpability on every other deepwater rig operator in the Gulf of
      Mexico; because this Court has determined that the first
      moratorium is invalid in law; and because the Interior Secretary’s
      second moratorium arguably fashions no substantial changes from
      the first moratorium, the government has failed to circumvent the
      voluntary cessation exception to mootness.
      The court also stated that the rescission of the May Directive did have
“some administrative force,” a statement we would interpret later that month
to mean that “the moratorium the preliminary injunction enjoined no longer
ha[d] any operative effect.” Concluding further that any opinion by our “court
on the merits and legality of the issuance of the preliminary injunction would
address an injunction that is legally and practically dead,” we dismissed
Interior’s merits appeal as moot on September 29.
      After the district court denied Interior’s motion to dismiss for mootness,
but before this court’s ruling on the appeal, Hornbeck filed a motion to enforce
the preliminary injunction. In that motion, Hornbeck argued that by rescinding
and replacing the May Directive, Interior had chosen to disobey the district
court’s order rather than permit it to undergo an orderly process of judicial
review. On September 30, the district court determined that “[i]n light of the
United States Court of Appeals for the Fifth Circuit’s September 29th opinion

                                        6
    Case: 11-30936     Document: 00512203396     Page: 7   Date Filed: 04/09/2013



                                  No. 11-30936
declaring moot the appeal of the preliminary injunction, the plaintiffs’ motion
is DENIED.”
      The Secretary lifted the July Directive on October 12, 2010, which was a
few weeks before the moratorium’s anticipated six-month expiration. This
effectively mooted the Hornbeck suit. Hornbeck moved for attorneys’ fees on two
bases: (1) civil contempt and (2) bad-faith litigation tactics. The district court
expressly declined to reach the bad-faith basis. Instead, it concluded that “the
plaintiffs have established the government’s civil contempt of its preliminary
injunction order” by clear and convincing evidence. It would later approve an
award of both fees and costs of approximately $530,000. We now consider the
actions the district court identified as contemptuous and analyze whether they
violated its written order.
                                 DISCUSSION
      Federal courts have the inherent power to punish for contempt. Roadway
Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). The availability of that power
promotes “the due and orderly administration of justice” and safeguards the
court’s authority. Id. (quoting Cooke v. United States, 267 U.S. 517, 539 (1925)).
“Because inherent powers are shielded from direct democratic controls,” the
Supreme Court instructs that “they must be exercised with restraint and
discretion.” Id. Rather than stemming from a “broad reservoir,” they are
“implied power[s,] squeezed from the need to make the court function.” Crowe
v. Smith, 151 F.3d 217, 226 (5th Cir. 1998).
      We review contempt findings for abuse of discretion, but “review is not
perfunctory.” Id. Facts found by the district court will be accepted as true
unless clearly erroneous, but “the interpretation of the scope of the injunctive
order[] is a question of law to be determined by the independent judgment of this
Court.” Drummond Co. v. Dist. 20, United Mine Workers, 598 F.2d 381, 385 (5th
Cir. 1979).

                                        7
     Case: 11-30936    Document: 00512203396        Page: 8   Date Filed: 04/09/2013



                                   No. 11-30936
A.    Civil Contempt Finding
      “A party commits contempt when he violates a definite and specific order
of the court requiring him to perform or refrain from performing a particular act
or acts with knowledge of the court’s order.” Travelhost, Inc. v. Blandford, 68
F.3d 958, 961 (5th Cir. 1995). For civil contempt, this must be established by
clear and convincing evidence. Id.
      Clear and convincing evidence is that weight of proof which produces in
      the mind of the trier of fact a firm belief or conviction . . . so clear, direct
      and weighty and convincing as to enable the fact finder to come to a clear
      conviction, without hesitancy, of the truth of precise facts of the case.
Shafer v. Army & Air Force Exch. Serv., 376 F.3d 386, 396 (5th Cir. 2004)
(quotation marks and citations omitted).
      Though the court order must be clear, a court “need not anticipate every
action to be taken in response to its order, nor spell out in detail the means in
which its order must be effectuated.” Am. Airlines, Inc. v. Allied Pilots Ass’n,
228 F.3d 574, 578 (5th Cir. 2000). The order must “state its terms specifically;
and describe in reasonable detail . . . the act or acts restrained or required,” Fed.
R. Civ. P. 65(d), but a district court is entitled to a degree of flexibility in
vindicating its authority against actions that, while not expressly prohibited,
nonetheless violate the reasonably understood terms of the order.
      The district court identified the proper burden of proof and legal
standards, then laid out the reasons for its contempt finding. The court
identified three categories of action that it held, when viewed “in tandem” with
the national importance of the case and the reimposition of the moratorium,
supported a civil contempt finding.           Specifically, it found “defiance” and
“determined disregard” in (1) Interior’s failure to seek a remand from the district
court to the agency before taking new administrative action; (2) its continuously
stated public resolve to restore the moratorium; and (3) its communications to
industry that a new moratorium was in the offing. We note that we see no clear

                                          8
     Case: 11-30936        Document: 00512203396           Page: 9      Date Filed: 04/09/2013



                                         No. 11-30936
effect favoring either side’s arguments arising from the national significance of
the environmental disaster. The executive and judicial branches are co-equal,
and just as the executive branch responds to national emergencies, the judiciary
ensures that it does so in compliance with the law.
       Hornbeck and Interior dispute whether our law required that the case
have been remanded to the agency before it could issue a new directive. Each
side has marshaled authorities.2 The outcome does not hinge on whose view is
correct. Although a district court need not “spell out in detail the means in
which its order must be effectuated,” the injunction’s provisions must be “clear
in what conduct they [have] mandated and prohibited.” Am. Airlines, 228 F.3d
at 578-79. The injunction did not state that Interior had to seek permission for
a remand before developing additional rules on offshore drilling in the Gulf. The
only mandate about returning to the court was that Interior provide a report
describing “the manner and form” of its compliance with the injunction within
21 days. There has been no allegation that it failed in that duty. For Interior
to have been in contempt, the injunction would have had to include an express
or clearly inferrable obligation to petition for a remand. Cf. Armstrong v. Exec.
Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (vacating civil
contempt against federal agencies because district court’s “order did not
expressly direct” cited conduct).
       There were several communications to the industry manifesting Interior’s
“public resolve” to overcome the injunction. Six days after the injunction was
entered, Interior convened a meeting in Washington, D.C., attended by Secretary



       2
         Compare Broussard v. U.S. Postal Serv., 674 F.2d 1103, 1108 n.4 (5th Cir. 1982)
(stating that “prevailing jurisprudence” holds “that once a judicial suit is filed, an agency
should not unilaterally reopen administrative proceedings – the agency should first ask the
court to remand the case to it”), with Am. Farm Lines v. Black Ball Freight Serv., 397 U.S.
532, 542 (1970) (noting that “since the stay order did not forbid it from acting . . . , it was not
necessary for the [agency] to seek permission of the court” before ruling).

                                                9
    Case: 11-30936      Document: 00512203396        Page: 10    Date Filed: 04/09/2013



                                     No. 11-30936
Salazar and other high-ranking Interior officials. According to an affidavit from
an attendee,3 the question was posed to the government representatives
“whether deepwater drilling in the Gulf could resume at that time, given the
existence of an injunction against the previously issued deepwater drilling
moratorium.” The response by an Interior Assistant Secretary was that it was
his Department’s intention “to issue a second moratorium,” a statement the
affiant understood as “a signal that the cost and expense of resuming drilling
should not be undertaken by industry because the second moratorium would
prevent that activity from continuing once it was issued.”
      The relevant public communications, acknowledged by Interior, are the
Secretary’s press release responding to the injunction and his testimony to
Congress the next day. The press release does, as the district court recognized,
evince a resolve to reissue the moratorium. That intent was made explicit before
the Senate Subcommittee, just as it would be in Interior’s motion for a stay in
this court:
      Q. Mr. Secretary, do you plan to issue a new moratorium on all
      exploration of oil in the Gulf of Mexico at depths of more than 500
      feet?

      A. The answer to that is yes, Senator Alexander.
      Hornbeck also directs us to an answer the Secretary provided Senator
Murkowski, in which he stated:
            [W]ith respect to the moratorium, I believe it was the correct
      decision. I believe it’s a correct decision today. And with all due
      respect to the honorable court, we disagree with the court. And so
      we are taking that decision on appeal.
            At the same time, it is important that this . . . moratorium
      stay in place until we can assure that deepwater drilling can be


      3
        Interior has not disputed the accuracy of this account, provided by James W. Noe.
Noe was Senior Vice President, General Counsel, and Chief Compliance Officer of Hercules
Offshore, Inc. as well as the Executive Director of the Shallow Water Drilling Coalition.

                                           10
   Case: 11-30936     Document: 00512203396      Page: 11   Date Filed: 04/09/2013



                                  No. 11-30936
      done in a safe way. We’re not there today. And so we move forward
      with the executive authority which I have to make sure that the
      moratori[um] does, in fact, stay in place.
      Here, as well as in responding later to Senator Feinstein, the Secretary
referred to the moratorium as “in place.” Hornbeck argues that terminology is
a sign of contumacious defiance because an injunction prohibiting enforcement
of the moratorium had issued.       Interior regards the choice of words as a
misstatement at worst. Moreover, because the May Directive had not been
rescinded, saying the moratorium was “in place” was in some sense accurate.
      Taken together, the comments to industry, to the Senate, and to the public
support the district court’s factual finding (the fact was hardly contested) that
Interior was intent on reinstating a moratorium that imposed the same
limitations as the May Directive from the moment the court enjoined it. Neither
harboring that intent nor imposing a new moratorium, though, was a violation
of the court order. The district court did not conclude otherwise. Hornbeck’s
motion for contempt focused “on the government’s imposition of a second blanket
moratorium hurried on the heels of the first.” According to the district court,
using the issuance of the July Directive as a reason for contempt would require
reading its “preliminary injunction Order too broadly.”
      The district court explained that the injunction had been based on a
finding that “the plaintiffs were substantially likely to prove that the process
leading to the first moratorium was arbitrary and capricious” in violation of the
Administrative Procedure Act. See, e.g., Jupiter Energy Corp. v. FERC, 407 F.3d
346, 349 (5th Cir. 2005) (explaining that the Act requires “reasoned analysis”
and a cogent explanation for agency action). In “answer to the plaintiffs’ quarrel
with the second moratorium,” the court explained that Interior took the position
that it had “met the Court’s concerns and resolved each of the procedural
deficiencies in the first.”   Although the court expressed skepticism about
whether that would be borne out, it then ruled that under “these facts alone,” it

                                       11
    Case: 11-30936       Document: 00512203396        Page: 12     Date Filed: 04/09/2013



                                      No. 11-30936
“could not, at least not clearly and convincingly, find the government in
contempt of the preliminary injunction Order.” We agree. See Test Masters
Educ. Servs., Inc. v. Singh, 428 F.3d 559, 582 (5th Cir. 2005).
       Hornbeck’s complaint also asserted that a six-month moratorium on all
drilling exceeded the authority delegated to Interior under the Outer
Continental Shelf Act. The court never reached that issue. Had the May
Directive been enjoined on that basis, this would be a very different case.
Instead, the sole justification for the preliminary injunction that did issue as to
the first Directive was a procedural failure to explain. The court order did not
explicitly prohibit a new, or even an identical, moratorium. It is true that the
district court identified additional potential APA deficiencies in the process
surrounding the July Directive,4 but those potential defects are not presented
here as a basis supporting the contempt. Hornbeck’s “victory” was fleeting and
frustrating to its goal of actually allowing drilling to proceed.
       In essence, the company argues that by continuing in its pursuit of an
effective moratorium, the Interior Department ignored the purpose of the district
court’s injunction. If the purpose were to assure the resumption of operations
until further court order, it was not clearly set out in the injunction. A more
broadly worded injunction that explicitly prohibited the end-run taken by
Interior would have set up issues more clearly supportive of contempt.
       The district court dealt expeditiously and forcefully with extremely
significant litigation.    The potential APA violations that led to the initial


       4
          In its September 1, 2010, order refusing to dismiss the Hornbeck suit as moot, the
district court raised questions regarding whether the “618 new documents and over 6000
pages” that Interior pointed to as evidence of the deliberative process that went into the
second moratorium truly evidenced such deliberations. It noted that nearly every statement
in the July Directive had been “anticipated by documents in the May 28 record, or by
documents that were otherwise available to the Secretary before May 28.” It also recognized,
though, that since the Hornbeck complaint did not concern the July Directive, the issue of
whether the second moratorium complied with the APA was not part of this suit.

                                            12
     Case: 11-30936      Document: 00512203396          Page: 13     Date Filed: 04/09/2013



                                       No. 11-30936
injunction are not at issue today, but such violations, if significant, would justify
a district court’s consideration of an injunction. Our decision is a narrow one.
We conclude that Interior’s actions did not violate the injunction as drafted and
reasonably interpreted. Therefore, there was no civil contempt.
B.     Bad Faith Litigation
       In the alternative, Hornbeck suggests the Equal Access to Justice Act
(“EAJA”) as a basis for the award of attorneys’ fees. See 28 U.S.C. § 2412(b), (d).
Interior counters that this alternative is inadequately briefed. See Fed. R. App.
P. 28(a)(9), (b). We agree.
       Hornbeck’s bare-bones briefing of this issue fails to explain how the
substantive and procedural requirements for an award under EAJA are
satisfied. First, we have held that to impose that sanction the “court must make
a specific finding that the sanctioned party acted in bad faith.” Matta v. May,
118 F.3d 410, 416 (5th Cir. 1997).5 The court refrained from reaching the issue
of bad faith and Hornbeck has offered no argument as to why that fact is not
dispositive. Second, the party wishing to recover under this Act must “within
thirty days of a final disposition in the adversary adjudication, submit to the
agency an application which shows that the party is a prevailing party and is
eligible to receive an award.” Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997,
1006 (5th Cir. 1995). In Boland, we declined to resolve whether a party was
entitled to attorneys’ fees without evidence in the record that these procedures
had been met. Id. Hornbeck has not alleged it complied.
       Finally, without analysis, Hornbeck declares itself to be a prevailing party
citing to Dearmore v. City of Garland, 519 F.3d 517, 521-24 (5th Cir. 2008).


       5
         See generally Sanchez v. Rowe, 870 F.2d 291, 293 (5th Cir. 1989) (explaining that
EAJA authorizes attorneys’ fees when the Government runs afoul of the common-law rule
prohibiting parties from acting “vexatiously, wantonly, or for oppressive reasons”) (quotation
and citation omitted). Further, the district court characterized Hornbeck’s claim as a
“common-law claim of bad faith,” although its motion had invoked the statute.

                                             13
   Case: 11-30936     Document: 00512203396     Page: 14   Date Filed: 04/09/2013



                                 No. 11-30936
Dearmore announces a three-factor test for determining whether a plaintiff who
receives a preliminary injunction is a prevailing party under a civil rights
provision, 42 U.S.C. § 1988(b), when “the district court makes an unambiguous
indication of probable success on the merits of his claim and the defendant
subsequently moots the case before trial in direct response to the court’s
preliminary injunction order.” Id. at 521, 524. Hornbeck has not engaged with
any of those considerations. Importantly, it has not explained how it can escape
from its decision to stipulate to dismiss the case or from the district court’s
conclusion that the July Directive did not moot the case because the voluntary-
cessation exception applied. E.g., Pederson v. La. State Univ., 213 F.3d 858, 873
(5th Cir. 2000).
      This potential basis for maintaining the award is waived because it has
not been meaningfully briefed. Nat’l Bus. Forms & Printing, Inc. v. Ford Motor
Co., 671 F.3d 526, 531 n.2 (5th Cir. 2012) (citing Fed. R. App. P. 28).
      The finding of contempt and the award of fees and costs are REVERSED.




                                       14
    Case: 11-30936       Document: 00512203396         Page: 15     Date Filed: 04/09/2013



                                      No. 11-30936
JENNIFER WALKER ELROD, Circuit Judge, dissenting:
       The revised majority opinion addresses some of the most troubling issues
raised in my original dissent, but still reaches the wrong result. Although the
majority opinion now recognizes this circuit’s well-established precedent that a
court may look to the totality of the circumstances in determining whether a
litigant violated the reasonably understood terms of its order, the majority
opinion’s cramped application of that standard disregards the deference owed to
the district court’s contempt findings. Moreover, the majority opinion’s approach
may give incentive for litigants creatively to circumvent district court orders.
This is especially troubling where, as here, the contemnor represents a co-equal
branch of government.1 As the least dangerous branch among equals, the
Judiciary must be vigilant regarding compliance with its orders, lest it become
toothless.




       1
          See The Federalist No. 78 at 227 (Alexander Hamilton) (Roy P. Fairfield ed., 1961)
(“[T]he judiciary is the weakest of the three departments of power . . . all possible care is
requisite to enable [the Judiciary] to defend itself.”); see also N. Pipeline Const. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) (“The Federal Judiciary was . . . designed by
the Framers to stand independent of the Executive and Legislature—to maintain the checks
and balances of the constitutional structure.”).

                                             15
