In re Gee

941 F.3d 153

IN RE: Rebekah GEE, in her official capacity as Secretary of the Louisiana Department of Health; James E. Stewart, Sr., in his official capacity as District Attorney for Caddo Parish, Petitioners.

No. 19-30353

United States Court of Appeals, Fifth Circuit.

FILED October 18, 2019

Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Petitioners.

Beth Ellen Klusmann, Esq., Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Heather Gebelin Hacker, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Austin, TX, for Amicus Curiae STATE OF TEXAS, STATE OF MISSISSIPPI.

Jenny Ma, Senior Staff Attorney, Center for Reproductive Rights, U.S. Litigation, New York, NY, Shannon Rose Selden, Esq., Debevoise & Plimpton, L.L.P., New York, NY, Charles M. Samuel, III, Rittenberg, Samuel & Phillips, L.L.C., New Orleans, LA, for Respondents.

Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.

PER CURIAM:

This is an extraordinary case. An abortion clinic and two of its doctors seek a federal injunction against virtually all of Louisiana’s legal framework for regulating abortion. As part of this effort, Plaintiffs challenge legal provisions that do not injure them now and could not ever injure them. The district court, however, concluded it would be "untenable" to make Plaintiffs establish their standing because doing so would make it more difficult for them to succeed on the merits. That was obvious error. Still, we exercise our discretion not to grant Defendants’ mandamus petition at this time because we are confident it is unnecessary.

I.

Plaintiffs brought a "cumulative-effects challenge" to Louisiana’s laws regulating abortion. They argued the provisions taken as a whole were unconstitutional, even if the individual provisions were not. Louisiana moved to dismiss on jurisdictional grounds and because Plaintiffs’ theory is foreclosed by precedent. The district court denied the motion to dismiss but certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). The court explained the cumulative-effects issue is one "of first impression that requires the interpretation of recent Supreme Court precedent without the benefit of clarification from the [Fifth Circuit]." May 15, 2018 Order, Doc. 76 at 3.

Plaintiffs then persuaded the district court to rescind the certification so they could amend their complaint to add individual-effect challenges to some of the provisions. After Plaintiffs amended their complaint, Louisiana again moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The district court again denied the motion. But this time, the district court did not certify its decision for interlocutory appeal. It’s difficult to understand why because the court found that the Amended Complaint still contained a "cumulative effects cause of action" and that "[w]ith respect to the applicable law which guides this Court, nothing has appreciably changed." March 29, 2019 Order, Doc. 103 at 13, 20. Without explaining its change of heart, the district court concluded "this is not a case of first impression." Id. at 20.

Stranger still, the district court refused to consider Louisiana’s jurisdictional arguments because doing so might make it difficult for Plaintiffs to prevail on the merits. Id. at 15. The court acknowledged Louisiana’s argument that Plaintiffs’ challenges to certain provisions "could not possibly be justiciable" and said that argument "appear[ed] persuasive" "[i]n a vacuum." Id. at 14; see also id. at 11 ("Defendants also claim that the Court lacks Article III jurisdiction to consider a challenge to many of the individual laws included in Plaintiffs’ cumulative effects challenge."). The court nonetheless refused to analyze Plaintiffs’ standing to challenge each provision included in their cumulative-effects challenge: "[T]o take on each regulation, individually and separately," would place Plaintiffs "in an untenable position where they are forced to individually challenge many facially valid regulations, despite the fact that, taken together, such provisions may violate the directives of both Planned Parenthood and Casey [sic]." Id. at 14–15.

Louisiana petitioned this Court for a writ of mandamus.¹ With Mississippi and Texas both supporting the petition as amici, all three States in our Circuit have asked us to intervene. Louisiana asks us, among other things, to use the writ of mandamus to dismiss two counts in the Amended Complaint.

II.

Under the All Writs Act, federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). That includes the writ of mandamus requested here. See, e.g. , Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). But because mandamus "is one of the most potent weapons in the judicial arsenal, three conditions must be satisfied before it may issue." Ibid. (quotation omitted). The Supreme Court has explained:

First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Id. at 380–81, 124 S.Ct. 2576 (alterations in original) (quotations omitted).

"These hurdles, however demanding, are not insuperable." Id. at 381, 124 S.Ct. 2576. They simply reserve the writ "for really extraordinary causes." Id. at 380, 124 S.Ct. 2576 (quoting Ex parte Fahey , 332 U.S. 258, 259–60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947) ). And in extraordinary cases, mandamus petitions "serve as useful ‘safety valve[s]’ for promptly correcting serious errors." Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 111, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (alteration in original).

"The clearest traditional office of mandamus and prohibition has been to control jurisdictional excesses, whether the lower court has acted without power or has refused to act when it had no power to refuse." 16 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3933.1 (3d ed.) [hereinafter WRIGHT & MILLER ]. That was true at common law. See 3 WILLIAM BLACKSTONE , COMMENTARIES *112 (explaining the writ of prohibition issued to "any inferior court, commanding them to cease" a case that did "not belong to that jurisdiction").² And it’s true today. "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed jurisdiction." Cheney , 542 U.S. at 380, 124 S.Ct. 2576 (quoting Roche v. Evaporated Milk Ass’n , 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943) ); see also 16 WRIGHT & MILLER § 3932 ("The most common traditional statement is that the extraordinary writs are available to a court of appeals to prevent a district court from acting beyond its jurisdiction, or to compel it to take action that it lacks power to withhold.").

That’s not to say mandamus was or is limited to jurisdictional issues. Although it issued "in theory to prevent [a judge] from exceeding his jurisdiction or to require him to exercise it," it issued "[i]n practice" for "all manner of errors." Pulliam v. Allen , 466 U.S. 522, 532–33, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). But even as the use of mandamus expanded, the jurisdictional core remained. That’s why mandamus is described as "an expeditious and effective means of confining the inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so." Ex parte Republic of Peru , 318 U.S. 578, 583, 63 S.Ct. 793, 87 L.Ed. 1014 (1943).

III.

In keeping with the traditional office of the writ of mandamus, we start with the jurisdictional errors below. And we consider whether, in the extraordinary circumstances presented here, those jurisdictional errors give the State a right to the writ. It’s a close question, even in these extraordinary circumstances. But in our view, the State has carried its burden on the first prong of the mandamus standard.

A.

Our mandamus precedent has long distinguished between discretionary decisions and non-discretionary duties. If the issue "is one committed to the discretion of the trial court, a clear and indisputable right to the issuance of the writ of mandamus will arise only if the district court has clearly abused its discretion, such that it amounts to a judicial usurpation of power." In re First S. Sav. Ass’n , 820 F.2d 700, 707 (5th Cir. 1987). But if the district court has violated a non-discretionary duty, the petitioner necessarily has a clear and indisputable right to relief. See United States ex rel. Bernardin v. Duell , 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899) (holding "the writ of mandamus will not ordinarily be granted ... unless the duty sought to be enforced is clear and indisputable"); In re Digicon Marine, Inc. , 966 F.2d 158, 160 (5th Cir. 1992) (granting mandamus because "the district court had no discretion" (quotation omitted)); In re Estelle , 516 F.2d 480, 483 (5th Cir. 1975) ("[A]n extraordinary Writ may be appropriate to prevent a trial court from making a discretionary decision where a statute effectively removes the decision from the realm of discretion."); SEC v. Krentzman , 397 F.2d 55, 59 (5th Cir. 1968) (holding mandamus was appropriate because the district court "exercised what he thought to be a...