Judge Gregg Costa, one of the few moderate to left leaning jurists on the U.S. Court of Appeals for the Fifth Circuit, told The Texas Lawbook Thursday that he is resigning his position on the 17-member appellate court to go back to practice law.
Costa, who is only 49, informed his judicial colleagues, law clerks and President Joe Biden this week that he plans to leave the bench in early August.
In an interview with The Lawbook, Costa said it “has been a true honor” to serve on the New Orleans-headquartered appeals court and that it was “a difficult decision” to resign.
“I look forward to returning to my passion and getting back into the arena of trying cases,” Costa said.
Costa’s resignation caught judges and lawyers in the Fifth Circuit off-guard and disappointed, and some questioned whether someone with his moderate judicial views can feel comfortable on an appellate court now dominated by hardcore conservative jurists but not necessarily at home with its more liberal judges, either.
The timing of Costa’s resignation gives President Biden the ability to nominate a replacement to the New Orleans-based appellate court while the U.S. Senate remains in Democratic control.
Appellate law experts also note that Costa is one of only two of the 17 active Fifth Circuit judges who served on the federal district bench as trial judges. Judge Catharina Haynes of the Fifth Circuit is one of the few appellate judges on the Fifth with state trial court experiences. Lawyers say appellate judges with trial court experience tend to give greater deference to the trial courts when deciding whether to affirm or reverse lower court decisions.
“Judge Costa brought a valuable perspective to the court, based on his recent service as a district judge, providing a thoughtful voice in favor of trial-court discretion,” said David Coale, an appellate law expert at Lynn Pinker Hurst Schwegmann. “Judge Costa writes uniquely accessible opinions – full of substance, but in straightforward language, and frequently grounded in a short explanation of the bigger picture about the policies behind a particular legal dispute.”
Although Costa is only 49 years old, he has been a federal judge for nearly a decade. President Barack Obama appointed Costa, who was raised in Richardson, Texas, to the federal district court bench in Houston in 2012.
In 2014, President Obama nominated the University of Texas School of Law graduate to the Fifth Circuit. With the support of Texas Republican Senators John Cornyn and Kay Bailey Hutchison, the U.S. Senate confirmed Costa by a 97-0 vote.
Many legal experts believed that Judge Costa, who was a former federal prosecutor, would have been on a Biden Administration short list of possible U.S. Supreme Court nominees.
After law school at UT, Costa clerked for then-U.S. Chief Justice William Rehnquist in 2001, which gave him credibility with Republicans. He practiced law in the Houston office of Weil Gotshal from 2002 to 2005.
In 2005, Costa became an assistant U.S. attorney in the Southern District of Texas where he led the successful fraud and money laundering prosecution against Houston financier Allen Stanford in 2009.
Costa said he intends to remain on the Fifth Circuit through the end of July.
Fellow Fifth Circuit judges said Costa is well liked and highly respected by most of the other judges.
““Gregg is a towering intellect and gifted writer who enjoys wide respect across our court,” said Fifth Circuit Judge James Ho, who was nominated in 2017 by President Donald Trump. “I treasure our many conversations and shared love of the law. I am sad to see him leave our court, but excited for his next adventure.”
Judges Costa and Ho actually joined in a rare co-authored opinion in November 2021 – most appellate decisions have one judge as the author and the others either join or dissent. The opinion rebuked a panel of more conservative Fifth Circuit judges for being critical of criminal defense attorneys who made constitutional arguments that had been previously rejected by the courts.
In U.S. v. Jose Garza-De La Cruz, Judges Ho and Costa – joined by Judge Carolyn King – rejected the defendant’s argument that his sentencing enhancement was unconstitutional because it was based on a prior conviction and had been imposed post-conviction by the judge instead of a jury deciding “beyond a reasonable doubt.” The three judges ruled that prior U.S. Supreme Court precedent defeated such an argument.
But Judges Ho and Costa co-authored a concurring opinion that also was unusual because it responded to an earlier opinion authored by a separate three-judge panel in a separate case.
In an Oct. 29, 2021 per curium decision by Fifth Circuit judges Edith Jones, Jennifer Elrod and Eugene Davis, the panel rejected those identical arguments made by defense lawyers for Fernando Contreras-Rojas citing the Supreme Court decision in Almendarez-Torres v. U.S. But the three-judge panel added:
“We urge appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments. We meant it then and mean it now.”
In their jointly-authored concurrence, Judges Costa and Ho wrote that criminal defendants usually recognize that they “cannot obtain any relief from our court but notes he is raising the claim in order to preserve it for consideration by the one court that can overrule” precedent, referring to the U.S. Supreme Court. The two judges said they wrote to “make clear that we do not join in these admonitions” made by the other three-judge panel.
“So it is well within reason for litigants to ask whether the Supreme Court would reconsider Almendarez-Torres today,” they wrote. “Parties may . . . litigate in anticipation of a good faith expectation of legal change.”
“Perhaps the Supreme Court will one day take up the call to overturn Almendarez-Torres. Perhaps not,” Judges Costa and Ho wrote. “But preserving one’s rights just in case is not just reasonable. Failure to do so risks forfeiting the right altogether. We see nothing wrong with litigants diligently taking whatever steps they deem necessary to preserve their legal rights. We express no frustration with lawyers zealously defending the interests of their clients.”